LIBRARY OF CONGRESS 



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LIBRARY OF CONGRESS. 



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UNITED STATES OF AMERICA. 



RECONSTRUCTION 

DURING THE CIVIL WAR IN THE 

UNITED STATES OF 

AMERICA 



BY 



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EBEN GREENOUGH SCOTT 




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Or 



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1895 



BOSTON AND NEW YORK 
HOUGHTON, MIFFLIN AND COMPANY 

1895 



Copyright, 1895, 
By EBEN GREENOUGH SCOTT. 

All rights reserved. 



The Riverside Press, Cambridge, 3fass., U. S. A. 
Electrotyped and Printed by H. O. Houghton and Company. 



f 



PREFACE. 

The term " reconstruction," in American politics, 
applies more aptly to the revolted states than it does 
to the federal Union; for the mutilated form of the 
Union was restored by the mere ascendancy of the 
northern arms, but it was not until after this had 
occurred that the eleven states were reconstructed. 
The period during which the process of renewal was 
taking place is called, in popidar speech, the Recon- 
struction Period, and it refers, somewhat indefinitely, 
to the time occupied by the single term of President 
Jolmson and the succeeding two terms of President 
Grant, — the presidential terms during which the 
ancient governments of the subdued states were 
finally subverted, and new ones were erected m their 

places. 

I intend to winte the political history of the period 
of reconstruction, but, preliminary to doing so, I have 
set forth in this book certain things necessary to be 
known before taking up the subject and pursuing it in 
the sequence of time. It is a notable thing that, from 
the very beginning of the Civil War, the federal 
government never evinced a doubt of idtimate sue 
cess, and it is significant that, even in moments of 



IV PREFACE. 

disaster which seemed irretrievable, it was occupied 
with the question, " What is to be done with the 
revolted states when the fortune of war shall have put 
their fate in our hands ? " 

At first, the notion prevailed that the seceded states 
would retake their places in the Union merely, and 
that, this done, '• the Union as it was " woidd be re- 
stored. It was not long, however, before the slavery 
question made itself felt by transmuting restoration 
into reconstruction, and the distractions of the times 
were augmented by the conflicting opmions on this 
subject wliich divided the people and gained head in 
Congress. Nothing coidd be implied from the Consti- 
tution but restoration ; yet restoration involved the 
continuance of slavery, and this was out of the ques- 
tion with the people, who were now demanding that no 
settlement should be made without the elimination of 
that which was certain to produce a recurrence of the 
intolerable evil imder wliich they were laboring. Presi- 
dent and Congress, accordingly, changed front, and 
the proclamations of one and the debates and legisla- 
tion of the other showed how determinedly the North 
was bent uj)on a new order of things. 

Though the object sought was manifest, and the 
demand for change was peremptory, the means by 
which this change was to be effected and this object 
was to be attained were not clear. The Constitution 
gave no help to a procedure which was foreign to the 
system of which it was the expression. The contra- 



PREFACE. V 

riety among the people betrayed itself on the floor of 
Congress in the dissension of factions. The President 
took one view of the relations of a state to the Union, 
a faction of the Republicans took another, while the 
Democrats, reduced to a party of mere protest, still 
clung unavailingly to the doctrine of restoration. 
There was much groping, much fault-finding, and 
much contention, but uppermost, out of the confusion, 
rose at leng-th that which became known as the Presi- 
dential Plan of Reconstruction. This plan was actu- 
ally in progress in several of the regamed states when, 
by the assassination of President Lincoln, its further- 
ance devolved upon President Johnson. This plan 
had been prescribed by proclamation of the Presi- 
dent. 

It is to bring the genesis of " reconstruction " 
before the reader that this volume has been written. 
It is not a history of the contentions of parties and 
factions, but it is a presentation of the conception 
illustrated by the proclamations of the President, and 
by the debates (particularly those of the Senate) 
upon these proclamations, and upon matters which 
touched vitally the constitutional relations of the 
states to the federal Union : it shows, consequently, 
the great change of opinion and of sentiment which 
the people of the United States were then undergoing, 
and which at length found expression in three amend- 
ments of the Constitution. 



VI PREFACE. 

In a written constitution, the people of tlie United 
States have a standard whereby to determine their 
constitutional character; for no matter how contrary 
the modes of construing tliis instrument, the written 
words remain. The Constitution, therefore, preserves 
the character of a landmark by wliich the fidelity 
or infidelity of the people to their ancient character 
can be judged. When the storm has cleared away, 
it reveals indubitably how far they have been swept 
from their moorings. It is absolutely essential to a 
people, the security of whose liberties is coincident 
with the preservation of their constitutional character, 
to ascertain if they have suffered this character to 
become impaired. Such an oj^portunity as that pre- 
sented by the subsidence of the agitation which accom- 
panied the most stormy days through which the United 
States have ever passed has not occurred before to 
the Americans, and the reader cannot close this pain- 
ful chapter of our liistory without the question rising 
to his lips. Have we preserved the ancient character 
handed down to us along with the Constitution, or 
have we wandered from the faith of our fathers ? 
Washington, D. C, March, 1895. 



CONTENTS. 

CHAPTER I. 

INTRODUCTORY. 

PAOB 

Withdrawal of southern senators from the Senate of the United 
States. — Personality of the states ; the Senate. — Representa- 
tion of the people ; the House of Representatives. — Contrast 
between the northern and the southern peoples. — The compro- 
mise element in the Constitution. — Equality of the states . , 1 

CHAPTER II. 

FEDERAL UNION; REPRESENTATIVE DEMOCRACY. 

The Anglican Revolution ; descent of power from ruler to peo- 
ple. — Aristotle's "constitution" and "government." — Con- 
tributions of different colonies to the modern Union. — Contri- 
butions of the United States to the science of government. — 
Federal Union. — Representative Democracy. — Three great 
events in North American history. — The most striking physi- 
cal characteristics of the British colonies in America .... 23 

CHAPTER III. 

POLITICAL SEPARATENESS OF THE BRITISH COLONIES. 

Causes of segregation. — Lack of the sentiment of union. — What 
was a British colony ? — Political nature of a colony, and the 
relations of a colonist to the crown and to his colony. — Politi- 
cal corporations. — Allegiance. — Social and economical effects 
of separateness ; its advantages and disadvantages. — Extremi- 
ties to which spirit of exclusion reached. — Colonial individu- 
ality. — Colonial development due to self-government : colonies 
were creatures of growth and development. — Separateness due 
to natural causes 43 

CHAPTER IV. 

SEPARATENESS OF THE BRITISH COLONIES — CONTINUED. 

Separateness during the Stamp Act period : during the Congres- 
sional period. — Congress of 1774 and 1775. — The Declaration 
of Independence. — Local self-government 64 



viii CONTENTS. 

CHAPTEK V. 

THE ARTICLES OF CONFEDERATION. 

The Articles of Confederation expressive of segregation, and also 
of union. — Old School and New School. — The government 
designedly a weak one ; elimination of the " ruler " element. — 
Confederation suggested by the ^ew England Confederation of 
1643. — Slight effect of the Revolution upon the colonial gov- 
ernments. — Growth of union. — Defects of the Articles of Con- 
federation as a governmental structure set forth by Hamilton . 81 

CHAPTER VI. 

THE CONSTITUTION. 

The Constitution a necessity. — It guarantees the integrity of the 
state governments. — Its inherent conservatism. — In it the 
sentiment of union has become a dominating political force. — 
The Constitution terminates the Revolution and hands down 
its gains. — Federation and popular representation. — Appor- 
tionment of taxation and representation ; a compromise between 
the North and South. — The guaranty of a republican form of 
government 104 

CHAPTER VII. 

THE FORMATION OF PARTIES. 

The evolution of parties in free governments. — The colonial 
epoch, the brooding epoch ; fondness of colonists for politics, 
and practical part universally taken by them in governing. — 
No general parties during colonial period. — Parties generated 
during the revolutionary epoch. — Change of colonial character. 
— Constituents of the Federalists 125 

CHAPTER VIII. 

THE FORMATION OF PARTIES CONTINUED. 

Constituents of the Democratic-Republican Party (Anti-Federal- 
ists). — Principles prevalent among the people, especially the 
agriculturists. — Errors of the Federalists. — Jefferson and 
Hamilton. — The Old School and the New School 145 

CHAPTER IX. 

THE FORMATION OF PARTIES — CONTINUED. 

Parties form on Hamilton's measures. — Contrary constructions 
of the Constitution ; liberal and strict construction. — Madison 



CONTENTS. ix 

leads the strict-construetionists in Congress. — Personal feeling. 
— Views of Hamilton's financial policy entertained by the Jef- 
fersonians. — Hamilton's system favored a plutocracy rather 
than an aristocracy 171 

CHAPTEK X. 

CONSTITUTIONAL LEGISLATION. 

The Ordinance of 1787. — The Kentucky and Virginia Resolu- 
tions. — The Missouri Compromise 189 

CHAPTER XI. 

COERCION, OR NON-COERCION ? 

Condition of affairs at the inauguration of Abraham Lincoln. — 
Coercion, or non-coercion ? — Inaugural Address and answer 
to the Virginia Commissioners. — Coercion. — The President's 
Message of July, 1861. — "No state, upon its own mere 
motion, can lawfully get out of the Union " 228 

CHAPTER XII. 

DEVELOPMENT OF PRINCIPLES OF CONGRESSIONAL ACTION TOWARDS 
THE SOUTH. 

The Crittenden Resolution of July 22, 1861. — Debate in the 
Senate upon the Resolution. — Sumner's Resolutions. — Ste- 
vens' vae victis policy — Hale on arbitrary arrests. — Claim of 
Congress to absolute power in reconstruction 245 

CHAPTER XIII. 

PLANS OF RECONSTRUCTION. 

The Emancipation Proclamation. — The Amnesty Proclamation 
and Presidential Plan of Reconstruction. — The Congressional 
Plan of Reconstruction and debate thereon in the House of 
Representatives 266 

CHAPTER XrV. 

THE CONGRESSIONAL PLAN OF RECONSTRUCTION. 

The Congressional Plan of Reconstruction. — Debate in the 
Senate. — Madison on the constitutional guarantee of a republi- 
can form of government. — Carlile's remarks upon this guar- 
antee. — The President withholds his assent to the Reconstruc- 
tion Bill. — His proclamation thereon, and the Manifesto of 
Senator Wade and Representative Henry Winter Davis . . . 290 



X CONTENTS. 

CHAPTER XV. 

THE CONGRESSIONAL PLAN OF RECONSTRUCTION — CONTINUED. 

The debate in the House on the Reconstruction Bill. — Last 
speech of Henry Winter Davis. — Failure of Ashley's substi- 
tute 306 

CHAPTER XVI. 

ENFORCEMENT OF THE PRESIDENTIAL PLAN OF RECONSTRUCTION. 

The reconstruction of Tennessee. — Arkansas. — Louisiana . . 317 
CHAPTER XVII. 

ENFORCEMENT OF THE PRESIDENTIAL PLAN OF RECONSTRUCTION 

CONTINUED. 

The reconstruction of Louisiana, continued 334 

CHAPTER XVIII. 

ENFORCEMENT OF THE PRESIDENTIAL PLAN OF RECONSTRUCTION 
— CONTINUED. 

The reconstruction of Louisiana continued. — Debate in the 
Senate upon the recognition of Louisiana as a State .... 349 

CHAPTER XIX. 

WHAT CONSTITUTES A STATE OF THE AMERICAN UNION ? 

Debate in the Senate upon a resolution to reject from the Elec- 
toral College the states that had seceded. — The ease of Loui- 
siana discussed 374 

CHAPTER XX. 

CONCLUSION 390 

Appendix A 401 

Appendix B . 406 

Appendix C 411 

Index ' 427 



RECONSTRUCTION 

DURING THE CIVIL WAR IN THE UNITED STATES 
OF AMERICA. 



CHAPTER I. 

INTRODUCTORY 

Withdrawal of sowthern senators from the Senate o£ the United 
States — Personality of the states ; the Senate — Representation 
of the people; the House of Representatives — Contrast between 
the northern and the southern peoples — The compromise element 
in the Constitution — Equality of the states. 

On the twenty-first of January, 1861/ the most im- 
pressive and painful scene in the annals of the United 
States of Amei'ica was witnessed in the Senate Cham- 
ber. The rumor had gone abroad that the senators 
of several of the states which had seceded were 
about to withdraw from the Senate. The chamber 
was filled with members and with those who had the 
privilege of the floor, and the galleries were crowded 
with spectators. Every state was present except 
South Carolina; her senators had not come to the 
capitol, but had sent in their resignations in wi'iting 
before the session began, and when the time came 
the chairs of these senators were empty. The first 
state to turn its back uison the Union was Florida, 
one which had been among the latest to be wel- 

^ Cong. Globe, 484 et seq. 



2 INTRODUCTORY. 

coined with open arms by the sisterhood of states ; 
it was also one of the weakest. Rising in his place, 
Yulee set forth briefly the reasons which had led 
his state to secede, and then he bade adien to the 
Senate. He was followed by the other senator from 
this state, Mallory, who alluded to the fideUty with 
which the South had clmig to the Union throughout 
her patient endurance of insult and wrong, and in 
the same breath annoimced that Florida had come 
into the Union only fifteen years before, and that, 
from the Union as their fathers had made it, there 
breathed not a secessionist upon the soil of this 
state. In spite of the solemnity of the moment, the 
inquiry forced itself upon the mind of the onlooker : 
Why did Florida enter the Union, if merely to share 
the insult and wrong of the other southern states? 
And, having accepted such a fate with her eyes open, 
with what consistency did she now turn her back upon 
a Constitution which she had been glad to accept, and 
which was the same at this moment as it had been 
when she had sought its protection ? Censoriousness 
and argument were overwhelmed beneath the anguish 
which convidsed the breast of every listener, and 
which was augmented by the recital of each sister, 
who, through her representatives, uttered her sense of 
injury. Alabama followed Florida, and Mississippi, 
Alabama. The story of their griefs was told by these 
states in subdued and measured tones ; the time for 
threat and defiance had gone by, the very parting it- 
seK had come, and the pain which wrung northerner 
and southerner alike was betrayed by twitching Hps 
and by deep silence. 

Every eye and every ear was intent upon Jefferson 



SECESSION AND NULLIFICATION. 3 

Davis when he rose. He was not in good health, but 
to tliis alone could be attributed any faltering or agi- 
tation. There was none : this was the crowning hour 
of his existence, and he approached the culmination 
of his life-work with calmness and dignity. All his 
life long, he had maintained the right of a state to 
withdraw from the Union, and this as an attribute of 
sovereignty coequal with the right under which the 
state had entered into the Union. He was no nullifier; 
nullification implied vmion, and he was no unionist. 
To nullify was to parry, to palliate ; it was to confess 
a right, yet to avoid its obhgations. Nullification and 
secession were incompatible principles. Davis neither 
parried, nor compromised, nor sulked ; he believed 
that the states were sovereign and unaccountable, and 
where there had been aggression he would not acknow- 
ledge superior power, but he was for meeting aggres- 
sion on the threshold by denying the superiority ; 
therefore, to Union he opposed dis-Union ; to aggres- 
sion, resistance. There was no middle course ; so 
long as a state was a member of the Union, it was 
bound to obey the law that was common to all ; if it 
woidd not obey, it must leave the Union, and of the 
necessity of such a course, there was no judge but the 
sovereign state. No one had the right to question, or 
to sit in judgment upon a sovereign, and unqualified 
obedience was the sole duty of the children of a state. 
This doctrine he had taught his people in season and 
out of season, and the hour had now come when he 
was reaping what he had sown. His eyes were be- 
holding the success long striven for ; the states were 
going out ; he was seeing them take their departure ; 
he was hearing them saying good-by ; and, above all, 



4 INTRODUCTORY. 

he was beholding the deep emotion of those who were 
left beliind. His tone was not exultant, neither did 
his voice falter ; his manner was gentle, firm, deter- 
mined. 

Heretofore Da\as had been the teacher, the seer, 
the leader of his people ; but when he was made king 
he ceased to be prophet and priest. As President of 
the Confederate States, he became merely the official 
head, a figure-head of a government ; he played a part 
which other men could have filled with equal benefit 
to his cause ; he was no longer the soul of the South. 
In passing from the legislature to the field, the work 
of maintaining secession fell into other hands : and 
true it is, that, when Jefferson Davis bade farewell to 
the United States, he bade farewell to the real work of 
his life. He found but a barren sceptre in his gripe, 
and when he left the Senate Chamber he took the 
course, which he pursued with heroic resolution and 
with Promethean defiance of his enemies, until, a fugi- 
tive, his flight was ended in the woods of Georgia by 
the hand of a conunon soldier. 

But prominent as this man was, and impressive as 
might be the personality of one upon whom men 
looked as being the embodiment of a cause, the spec- 
tacle owed its significance and solemnity to something 
deeper than that with which it was invested by one 
man. The departures from the House of Representa- 
tives were mostly signified by written missives, but 
there departure did not convey the intense and deeply 
moving force that it did in the Senate. For in the 
House it was representatives mei'ely who were turnmg 
their backs upon their fellows, but in the Senate it 
was sovereign states that were deserting the common 



DEPARTURE OF THE STATES. 5 

hearth. The states were going out. All that ever 
had been feared, or derided as improbable, or defied 
as impossible, or talked against, written against, 
prayed against, all this had actually come to pass, 
and in the visible physical forms of the departing 
senators, the states were leaving, never to return. 
Impenetrable gloom, foreboding, and thick darkness 
settled upon the Senate Chamber, and the soul was 
troubled : each man searched his heart to find if it 
were he who had dishonored his fathers, and had 
shortened the days of the land which the Lord his 
God had given him. The onlookers thought of Web- 
ster and his prayer, that liis dying eyes, as they sought 
the sun, might not behold it shining upon a torn and 
rent land, and they cursed the hour in which they 
themselves were witnessing the dissolution of the 
Union. Woe worth the day! 

When the scene was over and the open air had 
been reached, those who had been looking on this 
spectacle heaved a long breath and betook themselves 
to their homes. As the crowds streamed along the 
Avenue, it was apparent that something great, some- 
thing direfid, had happened. The southerners walked 
with their heads in the air, and talked in excited and 
defiant tones ; the northerners had their heads down, 
and spoke in fitf id and bated breath ; then they tried 
to shake off their forebodings, and to tlirow the burden 
of the day upon the seceders. They recalled the Tin- 
gracious conduct of Florida, who, with scarcely time 
enough to warm herself by the council fire, had been 
the fii'st to reproach her fellows with inhospitality : 
how wrong it had been in her to come into the Union, 
knowing the unhappy condition of feeling which ex- 



b INTRODUCTORY. 

isted, when lier presence increased the number of the 
discontented ; for Florida had not added anything to 
the flag- but her star ; she had brought no increase of 
wealth or power ; the sole dower it was possible for 
her to bring was fidelity, and this she had withheld ; 
and soon the reproach of Florida had grown into a 
sense of injury against the whole South, which un- 
questionably, as far as material advantages were con- 
cerned, had gained from the Union more than she had 
contributed. 

By the time that the people began to separate, and 
branch off into the different directions that led to 
their homes, the northerners had regained their voices, 
which, indeed, for some tune had been pitched high in 
argument and in sharp retort, and when the doors 
closed upon them, the sense of the South's wrong 
towards the North was uppermost, the sense of the 
North's right controlled their minds, and the deter- 
mination not to let the South go out, or, as it was ex- 
pressed, the resolution to " maintain the Union," had 
become fixed and mialterable. The crowds at the 
hotels were divided : the southerners exulting in high 
voice over the event of the day, and asserting the 
resolution of the South to achieve its independence, 
and its capacity to maintain it against any attempt at 
prevention by the North. They were greatly elated, 
and their predictions of the course of secession as- 
sumed that every state south of Mason and Dixon's luie, 
and of the Ohio and the Missouri rivers, would speed- 
ily follow, and that the year would not close without 
the South receiving applications from northern states 
for membershij) in the new confederation. The ex- 
cited imagination of the southerner pictured the por- 



RESOLUTION OF THE NORTHERNERS. 7 

tions of Ohio, Indiana, and Dlinois which bordered on 
the beautiful river, breaking off from their old alle- 
giance and turning their faces southward, instead of to- 
wards Washington ; even the greatest city and port of 
the country. New York, refusing to have its conunu- 
nication cut off from the most productive soil of the 
land and the greatest extent of territory, would join 
her fortunes to those of the South. Then her state 
would follow, and New England, the detested New 
England, would be completely isolated, and the day 
might come when the whole Union would be reorgan- 
ized, with New England and her western progeny left 
out. Thus, in the strife for supremacy between New 
England on one side and South Carolina on the other. 
South Carolina was to be uppermost, with the north- 
ern firebrand quenched and cast aside. In the babel 
of voices the accentuated tone of the northerner was 
little heard; the southerner ruled the hour and his 
peculiar accent filled the air. 

The southerners unquestionably relied upon the 
sjmipathy of the democratic party at the North for 
staying the hand of coercion. Nevertheless, wherever 
the news of this day's work reached in the North, it 
met but one reception. The northerner. Democrat 
though he might be, did not give way to his feelings : 
he brooded, and when he spoke, it was to tell his son 
that, come what may, the Union had to be preserved ; 
that for the southerner to say he was going " out " 
was one thing, but for him to do it was another ; the 
North would have something to say about that, too ; 
never again should there be another such scene in 
the United States Senate. There was no mistaking 
the resolution of the northern people, and the South 
felt it. 



8 INTRODUCTORY. 

That which took place in the Senate was something 
which never before had occurred in the recorded his- 
tory of people, for the conditions under which it had 
taken place had never before existed. There had been 
confederations in plenty, and confederations which had 
broken up in dissension ; but never before had there 
been a government delegated by sovereign states, 
which had been dissolved by the action of its indi- 
vidual constituents. Secession, as the American un- 
derstood the term, was peculiar to the form of govern- 
ment known as the United States ; for this was not 
a mere federation, it was a union, that is, a group of 
states consisting of a purely artificial central power, 
endued with attributes of sovereignty by the sovereign 
states, who delegated certain powers for the purpose of 
creating a qualified and limited sovereign. Tliis arti- 
ficial sovereign was stella nova in political history ; 
but, artificial as it was, it was, within the purposes of its 
being and the limitations which had been set upon it, 
sovereign. 1 It presented the anomaly of a bemg with 
certain attributes of sovereignty (among which was 
perpetuity), created by agreement, and with its sov- 
ereignty delegated, limited, and defined by a written 
instrument. 

To effect such a strange creation, it is evident that 
the parties to it must have been equal and willing ; 
and as it contemplated multiplication of parties, and 
growth, or, rather, accretion of states from territory 
already possessed, but not contained within state lines, 
it is evident, too, that the new members of the family 
were also to be equal and willing. The result was 
a family of states, and the relations of members of a 
^ See Iredell's opinion in Chisholm v. Georgia, 2 Dallas, 435. 



REPRESENTA TION. 9 

family, as well as tlie obligations of parties to a con- 
tract, implied equality and consent. There could not 
be, then, under the written instrument or Constitu- 
tion, anything like inequality, and as the rule of the 
majority was inherent in the federal system, the con- 
sent of aU was presmned when any act of the confed- 
eration had been ordained by a majority of voices. 
In order to effect this union, the two elements of peo- 
ple and states were represented in a House of two 
Chambers, in one of which sat the representatives of 
the states, and in the other those of the people. This 
frame of government constituted the Union. It is 
clear that it was neither a federation nor a confedera- 
tion, merely, for then there would be no need of a 
representation of the people; a representation of 
states would be all that was required. Why was 
there a representation of the people? Because this 
government, created by the states, was intended to 
act, within its delegated powers, directly upon the citi- 
zens of a state, as well as upon a state. A chamber, 
then, in which would sit the representatives of the 
people, was as necessary as one in which would sit the 
representatives of the states. If the states alone met 
by their representatives, the body which these state- 
representatives composed would be a council, a collec- 
tion of embassadors, for the states as sovereigns could 
be represented by plenipotentiaries only, and the form 
of government would be merely a federation. But, 
for the purposes of their being, the states which formed 
the new creature, considered it essential that, in their 
collective capacity, they shoidd exercise power over the 
individuals who composed the citizens of the different 
states ; they, therefore, ordained the representation of 



10 INTRODUCTORY. 

these indivitlual citizens, but restricted its action to 
legislation strictly, and tliis legislation was to be shared 
by the states. This qualified the pure and simple ex- 
ecutive character of the Senate, and made it legisla- 
tive, as well as executive : for the primary character 
of the Senate, being an assembly of plenipotentiaries, 
was executive. No embassador can legislate for his 
government, he can execute only. A collection of 
plenipotentiaries may counsel and advise, but this is 
not legislation ; and, even when it assents to an execu- 
tive act, this is not pure legislation, but is confirma- 
tory of executive action in the past, or, by anticipation, 
confirmatory of that in the future. This council of 
embassadors, therefore, would have remained a mere 
council, had not the Constitution gone farther, and 
ordained that the states, through their representatives, 
should take part in the legislation of the country, — 
a provision which modified the character of the coun- 
cil and invested it with a legislative character, and 
the Senate, consequently, was henceforth to be a leg- 
islature, as well as a council. Its character as an 
adviser was cut down to being adviser of the head of 
the executive branch of the government, who was to 
be styled President, and whose power was limited to 
executing the laws enacted by the legislature, except 
where special conditions and duties were laid down in 
the Constitution ; its character as an executive branch 
of the government was restricted to foreign relations 
and to sivinff its assent to certain functions of the 
President, and its character as a legislature was fixed 
by requiring its passage of the laws. 

Power, as we see, is greatly restricted in the House 
of Representatives, which can legislate merely. The 



REVERENCE FOR THE SENATE. 11 

power of the Senate to legislate is shared by the 
House and by the President, whose signature to an 
act cannot be supplied except under the limitations 
strictly prescribed by the Constitution ; and its power 
to execute is shared also with the President. As for 
the President, he was to execute, and this in part 
under the control of the Senate ; his power to legislate 
was restricted to allowance or disallowance, and this 
could be overridden by a two thirds vote of the legis- 
lature. 

Here we see fusion of powers in different branches, 
but so restricted, divided, and balanced among these 
branches, or departments, of government, that neither 
could act at the expense of the other — if the Consti- 
tution, to support which the most solemn oaths were 
taken, was regarded, and if the people, whose watcli- 
fidness was taken for granted by the founders, were 
worthy of their liberties, and were equal to the task 
of preserving them. 

Nothing could exceed the reverence with which the 
Americans regarded their Senate, so long as their 
reverence for the states retained its original vigor. 
The House of Kepresentatives was an assemblage of 
themselves ; but when they approached the Senate 
Chamber, their feelings were far different from those 
they entertained when approaching the House. In 
the latter case, they came as citizens, as individuals of 
the people ; but, in the other, they came as sovereigns, 
and their hearts beat high with the pride of sover- 
eignty. In that chamber sat their embassador in 
equality with other embassadors. In the House of 
Representatives they had little to caU forth feehngs 
other than those which accompanied them daily where- 



12 INTRODUCTORY. 

ever they might be, in their down-sitting and their up- 
rising ; but, in the Senate Chamber, — it was there that, 
above all places in the world, they felt their state-hood. 
Could they not see their state, the state itself, before 
their very eyes, and hear it in the voices of the two 
men who sat in plain view ? 

Thus it was, that the American who looked upon 
the departure of the southern senators from the Senate 
Chamber was grieved and shocked beyond expression. 
To him the dissolution of the Union itself was going 
on before his eyes ; than which there could be no more 
distressing spectacle, unless it were the rupture of his 
own family and its dispersion from the ancient hearth. 

The great civil war, which, in the seventh decade of 
the XlXth century, for four years rent the United 
States of America in twain, was the result of the in- 
congruous junction, under one government, of two con- 
flicting forms of society. From the time in which the 
British colonies on the Atlantic seaboard revolted, 
asserted their existence as states, and united mider the 
Articles of Confederation, there had been two peoples 
in this land calling themselves one people, and two 
forms of society passing themselves off as a single 
form. To all appearance, there was but one people, 
for they had had the same origin ; they had, too, the 
same tongue and the same religion, but their localities 
were different, and so were their material interests and 
their habits. More significant than any other differ- 
ence were the ways in which they viewed society, its 
foundation, its form, its spirit, and its end. Climate, 
topography, products of water and soil, tended to 
make the divergence between these elements wider, 



TWO FORMS OF SOCIETY. 13 

with a rapidity which the lack of every kind of the 
restrictions to which they had been subjected in the 
land of their origin, rendered marvellous. For, when 
the rebellious colonies came together at Pliiladelphia, 
the difference between the North and the South was 
greater than it is now that the South has undergone 
tliirty years of assimilation with the North. In 1775 
this difference was apparently fixed and unchangeable. 
The northerners presented the characteristics which 
the people of cold climates always display : they were 
prolific, insensible to change of temperature, saving, 
hard-working, of religious fervor, but tending to in- 
credulity, skeptical in matters of politics, as well as 
in those of religion, and as venturesome in experi- 
ments of government as they were in scouring un- 
known seas; and the -most striking and pregnant 
characteristic of all, and the one wliich exerted the 
greatest effect upou the settlement of the country, 
was that they were disposed to be migratory. The 
southerner's notion of home was a fixed habitation, 
around which was to cluster the traditions and asso- 
ciations of twenty generations: the longer it lasted, 
the more it was a home, and " home " was limited to 
"family." The northerner's notion was much more 
abstract ; his neighborhood was more to him than the 
soil was ; home was where his neighborhood was, and 
it might be said to include the neighborhood. The 
house might be a log-cabin, or, like the Virginian's, 
be built of bricks brought from England ; but his 
pride in it depended upon the effect of the display his 
wealth had upon liis importance in the community ; 
his home lay where his family and the neighborhood 
were. The form of society characteristic of the north- 



14 INTRODUCTORY. 

erner, therefore, was founded upon the neighborhood; 
it was centralized, consolidated ; but, as the world 
knows, the form of society characteristic of the south- 
erner was founded upon the plantation : it was dis- 
persed, the members of it were isolated, and it was 
patriarchal in nature. The form each American lived 
under exerted a great influence upon his character, his 
affections, his ambition, his fears and hates, his mode 
of life, and, especially, upon the view he took of the 
end and aim of his life-work. The southern family 
was thrown upon its own resources : intercourse with 
the nearest, yet distant, neighbor, was a state affair ; 
but the northerner hved in the midst of numbers ; 
intercourse was the daily round of his life, and inter- 
course not formal and with his equals only, but infor- 
mal, common, and with eveyy class of society. To 
the seclusion of the southerner he opposed sociality ; 
to his exclusion, freedom of intercourse ; his sociabil- 
ity showed itself in every form and place ; his servants 
were not restricted to " quarters ; " they sat at the 
same board and broke the same bread, but they sat 
below the salt. It must be owned that when he went 
to church, that is, when he said his prayers in public 
instead of in private, the social hne of demarcation 
was made more striking ; then the servants who had 
knelt on the same floor with him in the morning, 
at high noon were gazing at him from "the loft." 
But the distinction between the northern and the 
southern social forms are unmistakable ; one was 
where society lacked sociability, the other was where 
it was almost entirely sociable; m one region it 
was founded upon land, in the other, upon personal 
property ; here labor was dishonorable and was 



DIFFERENCES OF SOCIAL FORMS. 15 

owned, there it was honorable and compensated. The 
fact that all the northern colonies were slave colo- 
nies in the XVIIIth century signifies nothing, in 
view of the greater fact that northern society was 
getting rid of slavery as fast as it could do so. This 
fact has significance, for it shows that sentiment and 
interest in the North were abeady against slavery, 
while society in the South was actually founded ujjon 
it; for, in an agi-icultural slave country, land and 
slave cannot be separated ; one implies the other. The 
South was restricted to agriculture ; the North took 
to the sea, it navigated, it traded, it shaped materials 
into new forms, and already the signs were abounding 
that, but for the persistent opposition of Parliament 
to colonial manufacture. New England would be a 
manufacturing country. 

The northern proclivities and habits of thought, too, 
differed greatly from those of the South. Eeligion 
entered into everything, down to the close of the 
XVIIth century, so much so as to impress the 
XVIIIth century very markedly. Ancient New Eng- 
land religious life was built upon the Old Testament, 
and was gloomy, severe, absorbing, and exacting. 
There was little mercy in the early New Englander's 
justice. Ancient southern religious life was built 
upon the New Testament ; it did not affect manners 
austerely, and the justice of the southerner was 
humane. The middle class cut a small figure in the 
South ; in the North it was all-important. Education 
in the South was exceedingly restricted, yet purer 
English was spoken nowhere than here ; an exception 
to this defective education was to be found in the pro- 
fessional learning of the bar, which, crude as it may 



16 INTRODUCTORY. 

seem to us now, nevertheless produced not a few law- 
yers of erudition. In New England, education began 
in the cradle ; as might be expected of the descendants 
of the most learned body of mimigrants ever known. 
The atmosphere of the plantation was conducive to 
reflection and to self -analysis ; that of the northern 
village and township favored the study of others, and 
was more conducive to observation than to meditation. 
The New Englander was a quick-witted being ; he was 
acute — so much so as to be a standing target for the 
witticism of the South. There was no mechanical 
skill where society rested upon slavery ; there were no 
artisans, for there were no towns, and the simple needs 
of the plantation were supplied by slaves. There was 
no demand for white mechanics, and this brought 
mechanical skill into disrepute. Even Jefferson ^ re- 
garded mechanical labor unbecoming in a white per- 
son. The antipathy to white labor was inveterate ; 
for, just preceding the secession of the eleven states, 
the northern laborers were stigmatized by a southern 
orator as " greasy mechanics," and as " the mudsills of 
society." No one ever heard of invention in the 
South, but in the Northeast every farmhouse had a 
brain busy in transferruig the power of labor to wood 
and iron, and in multiplying its forces by machinery. 
From the beginning of the XYIIIth century, the New 
Englanders had displayed great aptitude for invention. 
In the South the planter made his journeys in his 
barge with half-a-dozen rowers, or in a coach and six ; 
a carryall marked the possession of wealth in New 
England, and the great man generally went on horse- 
back. As there was httle or no home trade south of 

1 State of Virginia, 275. 



THE POOR WHITES. 17 

tlie Potomac, there was no need of money ; money, 
therefore, existed in Kttle quantity, and for a long 
time did not circulate there at all. Tobacco provided 
the standard of values and was the circulating medium ; 
trade was conducted by barter. In the North, on the 
contrary, except upon the frontiers, money was in 
active circulation. Then, as now, there were shops in 
every village and at the cross-roads, as well as taverns 
in plenty. 

In several of the southern colonies there were but 
two classes of whites, the planters and "the poor 
whites;" an impassable gulf separated these social 
constituents. This low class is easily accounted for. 
In the XVIIth century Virgmia and North Carohna 
were flooded with the scum of England, and especially 
of London. This was not altogether from free and 
voluntary inmiigration, but from immigration which 
was organized to supply the colonies with labor. The 
immigrants were in pawn until their labor had re- 
deemed and enfranchised them. They were called 
" redemptioners," and they came over and were sent 
over by thousands. Criminals and the incorrigibly 
vicious were sliipped along with them ; sometimes as 
the result of municipal action, but often of their own 
motion, for undoubtedly these colonies became the re- 
treat of many fugitives from justice, and of those who, 
if not criminals, had reason to shvin the places where 
they were known. Much good, doubtless, would have 
been derived from the redemptioners had their force 
been sagaciously directed, but they were drowned 
out by the rapidly inflowing tide of slave labor, and 
thus that which might have proved beneficial to soci- 
ety became an evil. In the end, when slavery had 



18 INTR OD UCTOR Y. 

possessed the land, there was no room for the low 
whites ; the demand for their labor ceased, and they 
in turn ceased to labor. They sunk at once to a very 
low level, and they never rose agam. Nothing at the 
South was held in such abhorrence as the " poor 
white." Slavery wronged him, indeed, for it permitted 
him to act no other part in life than that of a vicious 
drone, and to those above him he was a standing ex- 
emplification of the calamity in store for the white 
who relied on his own labor. He was really lower 
than the slave, if that were possible. This social 
pariah revenged himself upon the society into which 
unkind fortune had flung him, for he aggravated the 
contempt for labor entertained by his wealthy neigh- 
bor, and brought upon a succeeding and distant gen- 
eration the punishment which the northern laboring 
classes inflicted. For the great mass of the northern 
army represented the laboring classes, of which it is 
safe to say, that they took the field against the South, 
not so much for the love of the slave as of hatred of 
the aristocrat who owned him. 

Thus, alongside of each other lay two peoples : one, 
patriarchal, which, in the course of generations, be- 
came aristocratic, with labor owned and dishonorable ; 
the other, tending more and more to democracy, with 
labor compensated and honorable. After the country 
Ijad become subdued to settlement and tillage, com- 
mercial wealth flowed in greater stream into the hands 
of the democratic portion: this induced constant im- 
migration into the North, which thus increased in niun- 
bers and wealth with astonisliing rapidity, while the 
aristocratic portion lagged behind. Power gravitated 
to the North, and, therefore, when the States came 



RETROGRESSION OF THE SOUTH. 19 

together to form a confederation, the South eyed ner- 
vously every feature of the Constitution which might 
throw an overweight of pohtical power into the hands 
of its neighbor. In order to preserve the balance of 
power between the two peoples, representation from 
the South in the general council was augmented by 
including the slave population distinctively in the 
basis of federal representation, or, rather, of the states 
represented in Congi-ess. Equahty of the states was 
secured by ordaining that all the states, irrespective 
of popidation, should be represented in the assembly 
of states styled the Senate, by the same number of 
representatives, to wit, two. Thus the South and the 
small states were protected against the menacing 
gTowth of the North and the great states, by equality 
in the chamber of states, and by a compensating in- 
crease of representatives in the chamber of the peo- 
ple. This compensation in representation was a pre- 
caution, and had the weakness of all precautions ; it 
was liable to be rendered nugatory by change of con- 
ditions, and tliis change at last took place. As time 
wore on, it became clear that the enormous rapidity of 
growth on the part of the North had not been ade- 
quately forecast by the makers of the Constitution, 
and, as concurrent expansion was impossible, owing 
to the non-expansive capacity of slavery, the South 
apparently lagged behind : in reality, it had been dis- 
tanced in the race. The black cannot keep up with 
the white race in any respect ; and, as this contention 
for supremacy in the wealth of the country was a 
contention between the systems of labor which pro- 
duced this wealth, white labor soon left black labor 
(and with it the society founded upon it) in the rear. 



20 INTRODUCTORY. 

Moreover, the nature of slavery itself, by withholding 
the reward of exertion from the laborer, and by di- 
verting the fmiits of toil to the owner, rendered com- 
petition between free and slave labor a hopeless task. 
Except in the products to grow which white labor was 
unadaptable, slave labor could not hold even its own. 

The career of the slaveholders as tillers of the soil, 
therefore, was easily forecast, and this forecast af- 
forded slight comfort or even hope to the southerner. 
The supremacy of the North in wealth and popida- 
tion was speedily assured ; its supremacy in political 
power was equally a matter of course, and became a 
question of time only. The most important legis- 
lation of this country, consequently, is that which 
relates to the preservation of the balance of power 
between the North and the South. From the nature 
of the Union, a family relation, this legislation neces- 
sarily took the form of compromise. The Constitu- 
tion of the United States was so essentially a com- 
promise in what related to slavery, that it has been 
acknowledged by contemporary writers, that, without 
such compromise, this Constitution could not have re- 
ceived adoption by the southern states. Later still, 
the very word " compromise " appears as the title, and, 
indeed, motive, of legislation in the famous " Missouri 
Compromise," and in "the Compromise of 1850," and 
the last efforts of the venerable Crittenden, when the 
pillars of the Union were actually falhng around him, 
were aimed at compromise. " This is a government 
of ' compromise,' " said Henry Clay, " and I have 
passed my life in maintaining compromise." 

There was a reason for vigilance other than that re- 
quired by the contention for preponderance of sectional 



EQUALITY OF THE STATES. 21 

power, and this was the carefully guarded equality of 
the states ; this, alone, would forbid any member of the 
family to admit the superiority of a fellow. Equality 
of the states was a great fundamental notion of 
Union. There could in nature be no union of un- 
equals, and thus tliis principle of equality becomes of 
the utmost importance, the primal necessity, indeed, 
to the preservation of the Union. For union is not 
the mere physical, visible, and tangible collection of 
bodies politic ; this woidd be union without spirit and 
sold. The greatest force of union is its moral force 
— the union of the different characters of the various 
sections, their ideas and their principles, and, to this 
end, the constituents of union must have absolute free- 
dom of speech and of action under the limitations im- 
posed by themselves upon themselves. Nothing can 
be clearer than that, to exert this freedom of action, 
equahty of the members is of the first necessity, for 
how can there be absolute freedom where one is sub- 
ject to another, directly or indirectly, iimnediately 
or remotely? For the maintenance of the Union, 
then, nothing was more strongly insisted upon by the 
founders of the government than the equality of 
the states, and no principle ever attained such sanc- 
tity in the eyes of the Americans as this one. It was 
supposed to be inviolable, for each and all recognized 
the fact that, if it ever failed to be the paramount 
principle, " this Union," as the Constitution styles 
it, would no longer exist ; a " Union might exist 
(indeed, another union would have to be substituted 
for the ruined one), "a union whereof one section is 
pinned to the residue by bayonets ; " but that such a 
union was not the one constituted is clear and plain. 



22 INTRODUCTORY. 

Equality of the states, therefore, was the fundamental 
prmciple of union among the Americans, the one 
sacred principle, to touch which was profanity, and it 
was guarded by the instinct of self-preservation, as 
well as by the organic law. 



CHAPTER II. 

FEDERAL UNION; REPRESENTATIVE DEMOCRACY. 

The Anglican Revolution ; descent of power from ruler to people — ■ 
Aristotle's " constitution " and ''government" — Contributions of 
different colonies to the modern Union — Contributions of the 
United States to the science of government — Federal Union — 
Representative Democracy — Three great events in North Amer- 
ican history — The most striking physical characteristics of the 
British colonies in America. 

He who would know the whole extent and char- 
acter of the great Anglican Revolution, which, begin- 
ning in the latter part of the XVIth century, con- 
tinued its course to the closing decade of the XVIIIth 
century, should not restrict his observation to the 
events which occurred in the British Islands, but 
should embrace in his scrutiny the part taken by the 
Americans in these colonies which afterwards became 
the United States. For the story is not complete 
without the parallel and supplementary chapters fur- 
nished by these colonies to the history of the Anglican 
Revolution. 

Down to the reign of William and Mary, we hear 
little of the " constitution ; " after this reign the word 
meets us on all sides, and by the time that Walpole 
sought recreation from state-craft by riding to hounds 
at the county meet, the standing toast among the 
squires, next to that of " the king," had long been 
" our glorious constitution ! " 



24 FEDERAL UNION. 

The explanation of this fact is, that from the death 
of Henry the Eighth, power, political power, began to 
descend from the throne ; its movements were erratic 
and contradictory; sometimes it rushed downward, 
then retraced its steps, but, taking its whole action 
together, it has continued its descent from that day to 
this. Its tumvdtuous course during the XVIIth cen- 
tury is in marked contrast with the orderly and grave 
progress it has maintained since the flight of James 
II. It rapidly sought the people ; it ignored the no- 
bles and beheaded the king. The Long Parliament 
was made up of Presbyterian squires and city lawyers, 
but Pride's Purge ousted them and brought in the 
farmers and shopkeepers ; Cromwell cast these aside 
when he had done with them, and when life had done 
with him, the king had liis own again, and the old 
regime held sway more merrily than ever. But the 
earnest, convulsive workmgs of a century could not 
terminate in such futihty as was this mere doubhng 
of tracks. Revolution righted itself and resumed its 
march. The Stuart dynasty was overthrown, and the 
results of revolution were stored up in the Exclusion 
Bill, the Bill of Rights, and the Habeas Corpus Act. 
The royal prerogative was defuied and limited ; Parlia- 
ment was organized, lastingly, fixedly organized, the 
nobles were cooped up in a House of Lords, and the 
commons, flown with authority, and with the purse and 
the sword to maintain it, thronged the lower House. 
When noses were counted, it was found that the com- 
mons meant the squirearchy ; the landed interest, the 
rural gentry, were "in," and there they remained 
until Chatham sounded the note for their downfall. 
When the British people emerged from the revolu- 



THE DESCENT OF POWER. 25 

tlon of 1688 they had effected that which their ances- 
tors had failed to achieve ; they had given their coun- 
try a constitution, a structural frame of statehood, 
under which the powers of the sovereign were re- 
stricted ; the executive and legislative functions were 
separated ; the judiciary was independent of the ap- 
pointing power, as well as of those who were to be 
judged, and the citizen's rights and liberties were 
clearly ascertained and guarded. The forces of gov- 
ernment were no longer susceptible to confusion, nor 
to concentration in one hand. Power was distributed 
and made accountable, and rights were ascertained and 
were to be respected. England at last had a constitu- 
tion. Political power, in its early efforts to get away 
from the throne, had ignored the great nobles of 
Simon de Montfort's day ; at the accession of William 
and Mary it established the throne more firmly, but 
restricted the action of its occupant ; it had done a 
king to death. When its reconstructive work was 
nearly over, and it was casting about for a resting- 
place, it remembered the lesson of Pride's Purge ; it 
would descend no farther, and, turning its back upon 
shopkeepers and shepherds, it took up its abode in 
the manor-house. One ancient characteristic of tliis 
power is lacking since 1688 — irresponsibility ; thence- 
forth political power is accountable. Another century 
and the merchants and manufacturers were to gain its 
favor ; but, for the time being, the squires had it all 
to themselves. They discarded brown October for 
Port, and no wonder they toasted with enthusiasm, 
" Our glorious constitution." 

In surveying the results of the revolution of 1688, 
it is impossible to come to any other conclusion than 



26 FEDERAL UNION. 

that the whole movement was one which had for its 
aim the lessening of the inequality existing between 
the constituent members of the state. The throne and 
the great nobles had been shorn of authority and the 
commons had waxed in power. The distance between 
the sovereign and the people had been lessened. This 
diminution of inequality was a positive gain of equal- 
ity. England, it is true, emerged from its revolution 
with the old classes of king, lords, and conunons ; but 
the power of the state was in the hands of the people, 
who were the real rulers, and who retained king and 
lords for the good they could do the commonwealth. 
The tables were turned ; the state henceforth made 
for democracy, and with such effect, that the modern 
assertion, that England is as democratic as the United 
States are, can be controverted only by pointing to the 
monarchical and aristocratic form of government. 
All are equal in the courts ; power emanates from the 
people, and monarch and nobles are mere conduits or 
agents of this power. 

The chapters of American history that are parallel 
to those of the English revolution, those from 1630 to 
1688, tell the same story. The conditions under which 
the forces of society acted in America were very dif- 
ferent, but the aim of these forces was the same, and 
the result was democracy ; representative democracy, 
in politics, and in matters of conscience, absolute 
freedom. After 1688, the revolution in America 
continued its course, interrupted by nearly a century 
of repose and of force-gathering, until 1788, when it 
terminated, after protracted convulsion and revolt, in 
giving to the world a form of government unknown 



POPULAR SOVEREIGNTY, 27 

until then, but which assumed its place among the 
governments of the world with an assurance of power 
and stability that belonged more naturally to one of 
ancient growth. This form of government is known 
as a Federal Union. It was the latest form of Angii- 
can freedom. Alliances and leagues, federations and 
confederations, had existed in numbers, but a govern- 
ment which was the creature of sovereign states that 
had delegated the sovereign powers necessary to the 
exercise of its functions, and which, nevertheless, 
acted directly upon the citizens of these creating 
states, and which, at the same time, stood in external 
relation to the rest of the world as a great power, had 
never before been known to history. These states 
were founded upon the doctrme that the sovereignty 
lay in the people, because the people constitute the 
source whence all state-power emanates. It is true, 
that where the real power of a state lies, there resides 
the sovereignty, and that, judged by this standard, the 
sovereignty of Great Britain must lie in the commons, 
who are the repository of power ; nevertheless, the 
British people disclaim the notion that the sovereignty 
reposes an}^vhere but in the throne ; that is to say, 
they invest the occupant of the throne with the attri- 
butes of sovereignty, they make him the repository 
of sovereign powers, and carry out the principle of 
personification to the extent of styling him " the 
sovereign." It is evident that the great Anglican 
revolution took a step in America farther than it 
had taken in England ; for in America it did not stoj) 
until every revolting colony had become a state, built 
upon the expressed principle that the state is a com- 
monwealth, and that sovereignty lies in the people 



28 FEDERAL UNION. 

and nowhere else. It is in accordance witli this prin- 
ciple that the chief official of an American state was 
made the agent merely of sovereign power, and was 
styled "the Governor," and that, later on, the style of 
the chief official of the United States was restricted 
to one almost barren of importance, and was called, 
" the President." 

Aristotle ^ says, that the words " constitution " and 
''government" have the same meaning, and that gov- 
ernment is the supreme authority in states. He also 
says that when the citizens at large administer the 
state for the common interest, the government is 
called by the generic name, a constitution (^7roXtT€ta).2 
Modern publicists, with the rich examples of constitu- 
tional states before them, and especially the Anglican 
commonwealths, will not entertain for a moment the 
confusion of the term " constitution " with that of 
" government ; " as well confoimd the soul with the 
action of the body. Government is the application of 
the ruling forces of the state ; Dahomey has a govern- 
ment, but one would hardly ventvire to attribute to it 
a constitution, or even a policy. In its broadest sense, 
government is the art of governing ; in another sense, 
it is the method and manner of governing a particidar 
country ; in another, it is synonymous with the state, 
and in a still more restricted use of the word, it em- 
braces the great executive officials only who administer 
the functions of the state. In this last and personify- 
ing sense, it has been employed for many generations 
in the British Islands and dependencies, where we 
hear of one being " on the side of government ; " 
" government purposes to do this or that ; " " what 
1 Politics, III, 7 : Jowett's translation. ^ j^j, i^ 79^ sO. 



GOVERNMENT ; ADMINISTRATION. 29 

will government have to say?" It is noteworthy 
that, in the United States, the term " administration " 
is invariably used to express this personification. This 
is to be attributed to a substantial distinction between 
the modes of governmental administration in the two 
countries. In Great Britain all statutory enactments 
have their inception in the cabinet ; Parliament acts 
only upon that which is laid before it by the minis- 
ters. In the United States, on the other hand, all 
legislation has its origin in the legislature itseK, and 
the President and cabinet merely administer the laws 
which have originated in and have been enacted by 
Congress. It is clear that in Great Britain the cab- 
inet is a governmental body more than it is in the 
United States, and hence it is that the British people 
call their ministry "government," and that the 
Americans speak of the President and his cabinet as 
"the administration." Nevertheless, the use of the 
term " the government " is common with the Amer- 
icans in personification of the governing power ; but 
it is equally noteworthy that, when this is the case, 
the term is applied to the President and cabinet in 
the exercise of functions not in compHance with 
special enactment for the case in hand, but which 
are general, and dependent more upon the Constitu- 
tion than upon legislation, or where the legislation is 
ancient and general, or where the function is one 
which relates to the President, as the official head of 
a great power, and is dehors legislation altogether. 
Thus, where a difficidty has occurred between the 
United States and one of the great powers, the ex- 
pression, " What action wiU the administration take ? " 
would grate upon the ear of an American, for he 



30 FEDERAL UNION. 

would be aware that there would be no law of Con- 
gress to administer. The correct expression would 
be, " What action will the government take ? " for 
the circumstances present conditions for the exercise 
of constitutional powers, or those conferred by early 
legislation, and not of administration merely. 

If these examples, sustained by the ancient and 
common speech of two distinct peoples, of the same 
race and tongue, illustrate the popular use of the 
word " government," it is clear that " government " and 
" constitution " have not the same meaning. The 
lapse of two thousand years has created a distinction 
between them. Constitutions now-a-days are written 
or unwritten. If written, they embrace, among other 
things, the form of government. We see the different 
elements defined and described and we see further the 
lines distinctly marked upon which they are to act. 
Constitutions contain also, in few but very clear 
words, something to which everything else contained 
in them, and the people themselves, must be subor- 
dinate without gainsay or contradiction. These ex- 
pressions are those which, whether they set forth the 
nature of government or the rights of the citizen, may 
be styled the utterance of the very soul of the peoi^le 
thus organized into a state. 

There is only one way of estimating the constitu- 
tional character of a people — by its comf ormity or 
nonconformity with its constitution, written or un- 
written ; for in tliis constitution will be found the 
natural expression, and, therefore, the spirit of the 
people. If the constitution be unwritten, then it is to 
be collected from certain monumental statutes, judicial 
opinions, charters, or events ; as in England from 



THE SOUL OF GOVERNMENT. 31 

Magna Charta, the Habeas Corpus Act of Charles II,, 
and the statutes which marked the course and termina- 
tion of the revolution of 1688, and others which dot 
the records of legislation down to the Reform bills of 
the XlXth century. Where, too, the constitution is 
unwritten and the form of government is the product 
of time and tradition, this constitutional form may 
be ascertained from the visible branches themselves of 
the government. A constitution, then, embraces the 
structure of the state, and also manifests the spirit of 
the state. In it resides the soul which governs the 
government. So positive has this conception become 
in later days, that the modern writers are few who do 
not regard the state as a moral being. This, certainly, 
is carrying personification to a far point, but we have 
just seen that the common speech of the English- 
speaking people sustains the publicists in this po- 
sition. True it is, that of the Anglican governments 
the moving spirit is embodied in their constitutions, i 
Few, then, will question Aristotle's second remark, 
that when the citizens at large administer the state for 
the common interest, the government is called by the 
generic name, a constitution. For, though when strictly 
analyzed its terms cannot be completely reconciled, it 
contains tliis truth, derivable from anglican experi- 
ence of the last two centuries — that a popular state, 
when founded in sound principles, conducts its govern- 
ment by certain methods, and that from these princi- 

^ In respect to the moral attributes of a state, the modern writers 
merely " go back to Aristotle " and to Plato. For the Hellenic no- 
tion of this element of state-being, and for the reflection of a people's 
nature and social conditions by their political constitution, and for the 
ethical influence of constitutions, see Newman, Politics, I, 209-211, 
223 et passim. Compare, too, his references to Plato. 



32 FEDERAL UNION. 

pies and methods a constitution can certainly be 
deduced : TroXirda cannot bear the interpretation of 
" constitution," as an Engiish-si3eaking publicist un- 
derstands the term, and it requires all the weight of 
Jowett's name to make it do so. Nevertheless, Aris- 
totle's remark applies with singidar force to the ex- 
perience of modern free governments. For though 
England unquestionably had a constitution previous 
to the revolution of 1688, it was an imperfect one, 
and so confused and ill balanced, and so faulty was it 
in the distribution of political rights and powers, that, 
until this revolution had wrought a change, the con- 
stitutional history of that state can hardly be deemed 
to have set in. But the revolution over, we behold 
two things : the commons have the preponderance of 
power, that is to say, the citizens at large administer 
the state for the common interest ; and forthwith the 
government is called a constitutional government. 

Thus, though Aristotle doubtless had in mind a 
government far more democratic than that of Great 
Britain, the general truth of his remark is sustained 
by an illustration from the history of England.^ 

^ It must be borne in mind that Aristotle could not have had the 
conception of a constitution nor even one of a state, such as dwells in 
the mind of an English-speaking man of to-day. The only notion of a 
state that he gives us, is that of the City-state. " Of Empire — of the 
subordination of several states to one ruling state — he has nothing to 
tell us ; he miist have looked on such a form of union as artificial and 
unnatural, and therefore as beyond the scope of his inquiry. Nor 
does he treat of federation, or the union of several states under a 
common government for the common good ; to his mind the City- 
state should need no help from other states, and in combining with 
them would only be surrendering a part of its own essential vitality." 
Politics, 1326 B ; Fowler's City-state, (52. Aristotle's state was com- 
posed of men who lived the highest life, and whose fealty rested on 
neither fear nor force, but on enthusiastic patriotism and devotion. 



THE WRITTEN CONSTITUTION. 33 

It was in Connecticut that the written constitution, 
if not for the first time exhibited to the world, first 
appeared as the organizing instrument of a new state ; 
and first became indisjDensable to the formation of 
society in British America. The circumstances under 
which it appeared account for its importance. A few 
congregations, dissatisfied with the exchisive and over- 
bearing action of the Massachusetts ohgarchy (not- 
ably the imposition of taxation without representation, 
though, doubtlesss, there were personal and doctrinal 
antagonisms also), left the shores of the Charles River 
and sought those of the Connecticut. Buried in the 
woods, unknown to the revolutionary government in 
England and uncared for, these dissenters from dissent 
organized their society into what eventually proved to 
be a state, and this they did by a written consti- 
tution establishing representative democracy. About 
the same time, other dissenters from dissent settled 
the colony of Rhode Island with the avowed purpose 
of founding a commonwealth where all shoidd be 
equal and no man should be called to account for 
matters of conscience. Thus side by side grew up 
conuiiunities, one of wliich had under its care the 
fostering of a state founded upon representative de- 
mocracy and the doctrine that the governor was ac- 
countable to the governed for the exercise of his 
power, and the other had for its object equality of 
citizenship and the development of absolute freedom 
of inquiry. Across the line remained Massachusetts, 
the colony from which the others had departed, where 

Such a state would afford scope too restricted for a modern consti- 
tution. "The Politics," says Newman, I, 485, "is at once the por- 
traiture of an ideal state and a statesman's manual." 



34 FEDERAL UNION. 

state and cliurcli were not so much in conjunction as 
they were one and the same thing ; where freedom 
of inquiry was regarded as a bane of social Hfe, and 
where government was merely rule by the few. In- 
tolerance flourished luxuriantly in Massachusetts, and 
democracy and free inquiry had hard work to keep 
their footing alongside of her, in Connecticut and 
Rhode Island. Yet the necessities of those rude days 
compelled the few handf uls of New England zealots ^ to 
confederate — the first step towards the Union that 
was to follow a century and a half later. Thus we 
behold in this remote spot, written constitutional gov- 
ernment, and the shoots of representative democracy, 
accountability of the governing power, free inquiiy, 
and union, taking root at the same time. In the 
South we find the conservatism of the landed classes, 
and, in the middle colonies, at a later period, the free 
inquiry, and, strange to say, the equality of citzenship 
of Pennsylvania and New Jersey, although under a 
government almost purely palatine. 

It was these things which entered into the political 
life of the several colonies, which found voice in the 
state constitutions, and which, at a later day, were 
stored up in the federal Constitution. In them lie 
our vital forces, and in them consists the real federal 
Union — that plant of slowest growth, but of com- 
pletest maturity known to our institutional race. 

The most noteworthy contributions of the United 
States to the science of government, have been the 
elements of union between separate states and repre- 

- With the exception of rejected Rhode Island and the disdained 
settlers along the north coast. 



CENTRAL GOVERNMENT. 35 

sentative democracy. Federations there had been long 
before this government was organized, and representa- 
tion was of high antiquity ; but representative demo- 
cracy had its mception in this land, and here it is, also, 
that the principle of federation for the first time 
assumed the character of that which is now known as 
" the American Union." Union, in this sense, means 
a combination of sovereign states, wherein a central 
power, created by the members, acts for all combined 
into one whole in its external relations, and, in their 
inter-relations and internal achninistration, has juris- 
diction of such matters only as are prescribed by the 
constitution creating this power. In America it is 
essential to the notion of federal union, that the cen- 
tral government should possess sovereignty as far as 
it is delegated ; that it act upon the individual citizens 
alike in all the states ; that it should act upon the 
states ; that it have the three great divisions of pohti- 
cal power, to wit, executive, legislative, and judicial ; 
that its legislature, in the popular branch, should 
represent the people of each and every state; and 
that its upper house should consist of the representa- 
tives of the states themselves ; that the constitution- 
ality of any law of such legislature, or Congress, 
should be determined by the courts, and that the chief 
executive officer should not be clothed with so much 
as a vestige of sovereignty, though he is to execute 
the powers of government. This Union, like each of 
the states composing it, rests upon the principle that 
sovereignty hes in the people. 

Such, in a few words, is the notion of a federal 
union conceived of in America. It is the principle of 
federation carried to the latest stage of development 



36 FEDERAL UNION. 

— to the stage where it is in combination and in equi- 
librium with the principle of nationality. First in 
historical order comes the grouping o£ neighborhoods, 
no matter how formless, as were the Connecticut 
towns. Next is the combination of political bodies, 
no matter how loose, so long as the parties to the com- 
bination act as political units, are unrestricted, and do 
declare the purposes of combination, which purposes 
are purely political ; this is confederation, such as that 
of the United Colonies of New England in 1643, and 
that of the United States of America in 1781 : so 
far, however, we see no central body or government 
embracing the three functions of government, and 
none which can compel the compliance of individual 
citizens ; but next, and lastly, such a body or govern- 
ment does appear ; the citizen owes obedience in two 
jurisdictions, and that which an American calls " a 
Union " exists. The principle of federation, in the 
course of its development, has fuially assumed the 
characteristics and the attitude of a power, whose chief 
function in internal affairs is to preserve m harmony 
the conflicting principles of localism and nationalism. 
Historically, the former precedes, and nationahsm in the 
United States may be called the offspring of localism, 
for the United States constitute a group of peoples, 
each of which is autonomous and inhabits a particular 
locality. 

There is, likewise, another product of localism, and 
that is the representative democracy, which is indige- 
nous to this country. When the colonists came here 
they brought their institutions along with them, and 
they were vmfettered in the task of planting these in- 
stitutions and of adapting them to the new conditions 



THREE GREAT EVENTS. 37 

which invested them. Moreover, in the northern 
colonies, the colonists were of one class ; poHtical de- 
velopment did not have to contend with distinctions 
of classes. Neither was there disparity of wealth suf- 
ficient to make itself felt adversely to the principle of 
equality ; and the ruling colonists being of one speech 
and of the same manners, democracy may be said to 
have come with them and to have taken possession of 
the country unopposed. The colonists, too, north and 
south, were familiar with the idea of representation 
in government, and the parliamentary struggle going 
on in England during the infancy of the colonies was 
their struggle as much as it was that of those who 
were waging it abroad. The townsliip soon appeared 
in the northern colonies, and by the beginning of the 
XVIIIth century had attained the height of its ef- 
fectiveness. The township is the neighborhood, and 
the neighborhoods constituted the General Assembly, 
being represented there by members of their own 
choice. In the south, where the parish existed, and 
was not the neighborhood, the neighborhood, neverthe- 
less, ruled, and there, too, it constituted the legisla- 
ture. This principle and form of representation is a 
natural characteristic of us as a people, and, being 
natural, its growth has been constant, silent, resistless, 
fuU. 

Three great events have influenced the course of 
civilization in North America : the Conquest of New 
France by the British, the achievement of Independ- 
ence by the Thirteen Colonies, and the subversion of 
the slave power in the United States. 

The Conquest of New France, by assuring British 



38 FEDERAL UNION. 

supremacy, secured to this quarter of the globe pre- 
dominance of the notions and principles contained in 
the word " anglican ; " that is to say, the assertion of 
individuality in matters of conscience, and the asser- 
tion of individuality in matters of government. Both 
of these principles had been evolved from the ages 
by Free Inquiry, which, on one side, took the form 
of religious liberty, and, on the other, of represent- 
ative government and accountability of the governing 
power. 

The second event, the American Revolution, was 
not a struggle between races, but was one between 
members of a race-family, and was a conflict of prin- 
ciples, which, though not unknown to the most of 
Western Europe, had made for generations the British 
islands their pecvdiar field of strife. In England, 
this struggle terminated with the Revolution of 1688, 
when constitutional hmitations were at last placed 
upon authority, which had been wont to hold itself 
free from accoimtability, and when certain rights of 
the individual received constitutional guaranty. This 
Revolution, however, did not extend to these shores, 
and, in the course of time, it became necessary to 
fight the battle over again upon the soil of America. 
The Revolution of 1776 accomplished this, and, ad- 
vancing still further than the Revolution of 1688, 
transferred the sovereignty from the throne to the 
people. From that time to this the Americans have 
ascribed to government a different origin and a dif- 
ferent object from those which had been previously 
accepted. The source of authority is now said to 
lie, not in the governor, but in the governed, and aU 
political power to emanate from and return to the 



LOGIC OF THE REVOLUTION. 39 

people ; ^ every administrative force is held to be dele- 
gated and accountable, and to have for its j3urpose the 
greatest good of the greatest number. These doc- 
trines have been steadily approached in England by 
the slower and less direct processes resulting from the 
Revolution of 1688, but, in this country, the opera- 
tion of our independence was direct and speedy, and 
the citizen was regarded at once as a different being 
from what he ever had been before. By this trans- 
formation of the governor into an agent, and the 
governed into principals, is meant the transfer of 
sovereignty from the throne to the people, and this 
transfer was Revolution.^ 

The third event, the American Civil War, was a 
logical sequence of the American Revolution. Start- 
ing with the assumption that sovereignty lay in the 
people, it answered the inquiry. What constitutes the 
people ? by sweeping away the restrictions upon citi- 
zensliip, which had been imposed by race, color and 
previous condition of servitude. It converted on the 
spot foiu* millions of slaves into as many free men, 

1 ' ' All power henceforth reverts to the people." Constitution of 
New York, 1777. " All power is vested in and consequently derived 
from the people." Declaration of Rights, Virginia, 1776; and see 
state constitutions of revolutionary epoch. 

" " Sovereignty is the right to govern ; a nation or State-sovereign 
is the person or persons in whom that resides. In Europe the sover- 
eignty is generally ascrihed to the Prince ; here it rests with the peo- 
ple ; there, the sovereign actually administers the Government ; here, 
never in a single instance ; our Governors are the agents of the peo- 
ple, and at most stand in the same relation to their sovereign in 
which regents in Europe stand to their sovereigns. Their princes 
have personal powers, dignities, and preeminences, our rulers have 
none but official ; nor do they partake in the sovereignty otherwise, 
or in any other capacity, than as private citizens." Chisholm v. 
Georgia, 2 DaUas, 472 ; Jay, C. J. (1793). 



40 FEDERAL UNION. 

and is the latest constitutional assertion of individual- 
ism, and the latest effort of Free Inquiry known to us 
in constitutional history. 

If we look at the map of North America during 
the later colonial epoch, but still previous to the con- 
quest of New France, we shall see that the British 
colonies occupied a long strip of seacoast and back- 
lying uplands, upon a line which was unbroken from 
the Savannah to the Penobscot. The first thing to 
strike the eye is, that these colonies were contiguous, 
and that they extended from a warm to a cold climate, 
but that all lay within the temperate zone. It is 
further to be remarked that, while notliing opposed 
the westward march of the British into the valley of 
the Mississippi, no other European race could enter it, 
without proceeding by way of the St. Lawrence river, 
which is closed by ice for many months in the year, or 
by taking a circuitous and irksome route southwardly 
through the Gulf of Mexico, Thus, the natural ex- 
pansion and advance of the British in America would 
be on shorter lines and through more temperate climes 
than could be enjoyed by any other people ; deep bays 
and navigable rivers facilitated access to the interior, 
and the front of seacoast secured direct and open 
communication with Europe. Such physical conditions 
could not be otherwise than favorable to colonial 
development. 

The second striking characteristic is the predom- 
inance of the anglican element. There was great 
diversity of race, tongue, and religion in the middle 
colonies ; the Dutch were uppermost along the Hud- 
son, and the Huguenot French were conspicuous in 



COLONIAL CONFORMITY. 41 

South Carolina, but these races, tongues, and religions 
were so assimilative with those of the character-giving 
localities. New England and Virginia, that, even where 
assimilation stojjped short, political conformity became 
com23lete. The English are not assimilative, therefore 
their exaction of the eradication of foreign institutions, 
or the conformity of these with their own, is inexor- 
able ; and, as time invariably rewards fixity of purjDose, 
these communities, from one end of the country to the 
other, at last presented unmistakably the appearance 
of EngMsh colonies. Looking at the colonies com- 
prised in one view, the forms of religion are those 
peculiar to England, the universal language is English, 
the governments are such as can spring from anglican 
sources only, the physical appearance of the people, 
their accent, manners, habits, and modes of living, all 
are English. Though nearly every tongue of Western 
Europe was spoken within their limits, so predomi- 
nating and absorbing was tliis single element, that no 
one could mistake these settlements for anything else 
than English colonies, nor deny their possessing a re- 
markable degree of political uniformity.^ It is true 
that, in respect to homogeneity, they did not equal the 
French colonies in Canada, nor has account been taken 
of the African contingent ; nevertheless, the more 
complete homogeneity of the French, to all appear- 
ance, had no greater effect on the political structure 
of New France than the approximate homogeneity 

^ " Providence has been ple.ased to give this one connected country 
to one united people ; a people descended from the same ancestors, 
speaking the same language, prof essing the same religion, attached to 
the same principles of government, very similar in their manners and 
customs. . . . This country and this people seem to have been made 
for each other." The Federalist, II (Jay). 



42 FEDERAL UNION. 

o£ the English had on the British colonies. New 
England was as English as Canada was French, and 
the southern colonies were more so than Mexico was 
Spanish. In Pennsylvania, upper New Jersey, and 
New York only could this characteristic be said to 
be modified in any great degree, and everywhere the 
Scotch and Irish were in such harmony with the 
English population aromid them, and were in such 
constant process of assimilation, that the general con- 
dition of homogeneity remained intact. The whole 
popidation, north and south, presented an unbroken 
appearance of anglican civilization, and the govern- 
ments, if not struck from the same die, were unmis- 
takably products of the same mint. 

No great cities appear. There is Boston in the far 
north. New York at the mouth of the Hudson, and 
Philadelj^hia, the largest of the three, on the Dela- 
ware.^ Flourishing as these are, they cannot be called 
great ; south of Philadelphia, thei^e is no city whatever. 
There is no such thing anywhere as a common capital, 
and, to explain the lack of so imjjressive a feature, we 
must turn from the map and betake ourselves to a 
consideration of the political constitution of the col- 
onies. 

1 As late as 1790, when the first census was taken, Philadelphia, 
then the largest and by far the most important city in the Union, had 
42,520 inhabitants only; New York had 33,131; Boston had 18,038; 
and Baltimore, 13,503 souls. These were the most populous cities, and 
they are taken in order of numbei-s. Between Baltimore and Provi- 
dence, in this list, are no other towns or cities, and yet Providence had 
6,380 people only. 



CHAPTER III. 

POLITICAL SEPARATENESS OF THE BRITISH COLONIES. 

Causes of segregation — Lack of the sentiment of union — What 
was a British colony ? — Political nature of a colony, and the rela- 
tions of a colonist to the crown and to his colony — Political corpo- 
rations — Allegiance — Social and economical effects of separate- 
ness ; its advantages and disadvantages — Extremities to which 
spirit of exclusion reached — Colonial individuality — Colonial de- 
velopment due to self-government : colonies were creatures of 
growth and development — Separateness due to natural causes. 

Political separateness is the most striking charac- 
teristic that greets the observer. Though the colonies 
are contiguous, and, in New England, homogeneous, 
they are disunited : they have no common constitution. 
This condition of segregation is attributable to several 
causes : 1. They were planted at different times, from 
different motives, with different objects, imder different 
circmnstances, and by settlers of different characteris- 
tics. 2. Diverse topographical and climatic conditions 
were unfavorable to consolidation, or to anything like 
oneness among them all. 3. Race instmct, as well as 
reasons of convenience and prudence, imposed limita- 
tions upon aggregations which might become unwieldy, 
which might jeopardize the enjoyment of self-govern- 
ment, or compel too great a sacrifice of individual 
freedom to the exactions of the community. To es- 
tablish the verity of this proposition, it needs the men- 
tion only of the hundred, the parish, the township, the 



44 POLITICAL SEPARATENESS OF COLONIES. 

shire, and the county, as iUustrating natural race pre- 
cincts. Were anything wanting to exemplify other 
motives for segregation, the migrations from Massa- 
chusetts to Connecticut and from the Carolinas to 
Tennessee would fully set forth the fact that sense of 
restraint, restlessness, jealousy, or fear of absorption 
by encroaching neighborhoods, clashing doctrines, ad- 
verse legislation, in a word, the thousand personal in- 
fluences to which independent men are subject, have 
proved quite as effective in restricting social aggrega- 
tion and causing disjunction, as have motives of mere 
convenience and social order. Historical, social, po- 
litical, topographical, and personal reasons, then, ex- 
plain the diversity that appears in the components of 
this assemblage, as well as the political separateness 
of the colonies, and to climatic influences, difference 
of soil, and qualification of homogeneity, must be as- 
cribed the contrast of social constitution, whereby 
concentration distinguishes population in the north, 
and dispersion population in the south. 

4. To these reasons must be added another, that it 
was not to the interest of the home government, or 
central power, to suffer consolidation of separate com- 
munities upon their own motion, in a distant land, 
where the conditions were exceedingly favorable to the 
development and expansion of power. These colonies 
were regarded as dependencies, but consolidation or 
even union, by revealing strength, is more suggestive 
of mdependence than it is conducive to the mainte- 
nance of dependence. While, then, united effort of 
several colonies might be tolerated for special and 
temporary purposes, such tolerance was purely an act 
of grace or necessity and not the concession of a right. 



UNION WAS OF SLOW GROWTH. 45 

As for consolidation on the motion of the colonies 
themselves, it was out of the question ; the interest 
of the crown then manifestly lay in maintaining the 
disjunction of these dependencies.^ 

So deeply impressed upon colonial life was this con- 
dition of separateness, that, for generations after the 
occupation of the Atlantic coast by the British, no 
effort was made towards a permanent union of the 
colonies, nor of any considerable part of them.^ 
There was cooperation, but never union. Such com- 
binations as occurred were provoked by considerations 
other than those of social development, and were not 
political and voluntary, but were physical and compul- 
sory; such as defence against the aborigines, attack 
of the French, and the like. These operations were 
of a temporary nature, were accomplished under the 
spur of impending destruction, and ceased as soon as 
the necessity was removed. For instance, the combi- 
nation of the New England colonies for military pur- 
poses was dissolved by the reduction of the hostile 
tribes of Indians, and, at a later day, the cooperation 
of New York and New England came to an end with 
the retirement of the French from the border. There 
is no instance of a general union of the colonies in 
arms until the Revolution, nor is there an instance of 
general and spontaneous union for any purpose before 
the Stamp Act. Supplies of men and money granted 

1 " The British government, not choosing to permit the union of the 
colonies as proposed at Albany, and to trust that union with their 
defense, lest they should thereby grow too military and feel their 
own strength," etc. Works of Franklin (Bigelow), i, 249; ii, 343 et 
seq. See, also, Life and Works of John Adams, ix, 591, 592. 

- To this the confederation of the New England colonies in the 
seventeenth century may be considered a qualified exception. It cer- 
tainly did not contemplate political union. 



46 POLITICAL SEPARATENESS OF COLONIES. 

upon requisition of the king are not significant of 
union, nor were they spontaneous and general ; spon- 
taneous assuredly they were not, as they were occa- 
sioned by the requisition of a superior, nor can that 
be called general and united which was not imposed 
upon all the colonies, nor complied with by all, and 
which, when discharged, was the particular contribu- 
tion of each individual colony. No action of all the 
colonies collectively, either of their own motion or of 
that of the home government, ever occurred. The 
sentiment of union was entirely wanting for four gen- 
eration s,i and it is difficult to see how such a sentiment 
eotdd develop under the colonial system ; for a com- 
mon ground of their own was needful to luiion, and 
this the colonies did not possess ; and reciprocal ties 
were requisite to bind men together in unity, but of 
these there could be none so long as the only ties per- 
missible were those that attached dependents to their 
superior. In fact, there was nothing political in com- 
mon between a colonist of New Hampshire and a colo- 
nist of Georgia ; the allegiance that they swore to one 
and the same person made them subjects of the same 
lord, but nothing more. It was not until subversion 
of the liberties each colony possessed was threatened 
by the spirit which prompted the Stamp Act legisla- 
tion, that there was any general and spontaneous ac- 
tion. Then, for the first time, a common sentiment 
pervaded the land ; for the first time a common inter- 
est was awakened ; and, for the first time, what was 

1 " It is a significant and curious fact," says Bigelow, speaking of 
the Albany Conference of 1754, " tliat, with the exception of those 
from Massachusetts, none of the delegates had any instructions to 
discuss the question of a union of the colonies for mutual defence, or 
for any other purpose." Works of Franklin, ii, 344. 



WHAT WAS A BRITISH COLONY? 47 

styled a Congress of tlie Colonies met together; 
though, even then, four of the thirteen colonies re- 
mained at home. This was the first indication that 
such a thing as a general sentiment of rmion existed 
in British America. 

This characteristic of separateness in the colonies 
was such a radical feature of their structure, and has 
had such a far-reaching and lasting effect upon the 
states into which they have since developed, and upon 
the Union which was formed from them, that close 
study of it, and thorough appreciation of its force as 
a condition precedent to union, and as a political ele- 
ment in our constitution, is essential to a correct un- 
derstanding of the history of the United States. We 
have seen already, that, apart from known physical 
and moral causes, this trait had political reasons for 
its being, and was influenced by the relations which 
existed between the cro\vn and the colonies. It may 
be well, therefore, to inquire what a colony, in the 
political sense, was ; what its relations to the crown 
were ; and what the relations of the colonist to the 
crown and to his colony. 

A British colony was a dominion beyond seas, of 
which the sovereign of Great Britain was lord. This 
dominion was integral ; that is, it was a corporation 
comprising in itself the powers and performing the 
functions of a body politic, independently of the 
world, except in the single respect, that it was bound 
unto its lord ; he was its head, and was represented by 
a Governor.^ This dominion was seK-governed ; it 

1 In the charter colonies at the outset of the Revolution, viz., 
Massachusetts, Connecticut, and Rhode Island, the Governors and 
assemblies were elected by the people. 



48 POLITICAL SEPARATENESS OF COLONIES. 

had a parliament, whose statutes were subject to re- 
vision by the king only, and, when these were not dis- 
allowed, they became the law of the land.i Thus it 
was autonomous, it was independent of the other do- 
minions, and it was subject to no other control than 
its lord's. The frame of a colony's political structure, 
it is seen, differs in no respect from that of England 
itself, where the three most prominent features are, 
likewise, king, parliament, and subjects. If, for illus- 
tration, we take any one of the American colonies, 
we behold, fii'st, the king in the person of the Gov- 
ernor ; next, the law-making power in the shape of the 
provincial legislature; and, finally, the body of the 
people, who are subjects. These last were freemen, 
and they were so by birthright of British subjects ; 
their liberties, wliich were numerous and great, were 
theirs by prescription, or by royal grant of franchises. 
The Governor was a symbol ; the only military power 
was the militia, which the colonists themselves com- 
posed ; the judiciary was their own, and they paid no 
taxes which were not laid by themselves. Such was 
the political constitution of every colony whose peo- 
ple were British, either by birth or descent. King, 
legislature, free people ; these were the invariable and 
unmistakable components of anglican constitution the 
world over.^ 

^ 111 Maryland, Connecticut, and Rhode Island, the laws were not 
required to be sent to the king for his approval ; it was otherwise 
with the rest of the colonies. Chalm. Annals, 203, 295 ; 1 Doug. 
Sunim. 207, 208 ; Story, Constitution, Book I, ch. xvii, § 171. The 
Maryland charter was the first by which the Proprietor and the free- 
men were authorized to legislate free from the negative of the crown. 

- The governments of Rhode Island and Connecticut were so re- 
publican in constitution, that when the colonies became states they 
retained their charters as the organic law. A number of the states, 



BOARD OF TRADE. 49 

To the assertion that no power intervened between 
the lord and his dominions, there are two seeming con- 
tradictions, the Board of Lords of Trade and Planta- 
tions, and the claim of right in the British Parliament, 
or, what amounts to the same thing, the British people, 
to legislate for the colonies. As to the first, it may 
be said that, so long as the colonies were small and 
the magnitude of their business was not too great, the 
admini^ration of colonial affairs was conducted solely 
by the king in Privy Council ; but that, as they waxed 
in size and numbers, it was deemed necessary for the 
facilitation of business to commit a great part of 
purely administrative matters, and particularly those 
relating to trade and commerce, to a body created for 
the purpose, and styled the Board of Lords of Trade 
and Plantations. This body did not escape the de- 
traction that mvariably opposes everything novel, nor 
could it avoid the insinuations that attributed its crea- 
tion to motives not altogether in the interest of remote 
and unfriended communities. Nevertheless, as the 
ground assigned for its formation was a reasonable 
one, this board was accepted, especially as the right 
of appeal to the king in council was left miimpaired, 
and, though narrowly watched, it was regarded by the 
colonists as a mere instrument of the sovereign for 
the administration of colonial affairs, and, hence, was 
no intervening third power. 

The act of Navigation, which regulated colonial 
commerce and restricted trade with foreign powers, 
and the acts of Trade, which, so far as colonial manu- 

also, in adopting' new constitutions, made their ancient charters the 
foundation of them, and, indeed, may be said to have merely adapted 
the charters to the new conditions. 



50 POLITICAL SEPARATENESS OF COLONIES. 

factures were concerned, were chiefly of a prohibitory- 
nature, were enactments of the British Parliament ; 
distinctively a third party and an intervening one. It 
has been a matter of surprise, that the colonies re- 
mained submissive to this legislation. Docility, how- 
ever, was not in every case a matter of course ; for 
Massachusetts, in order to assert her independence as 
an autonomy, made the Navigation act her own, by 
enacting it in her legislature, and Virginia, (^daring 
that, mider her charter, she was not bound by it, 
acknowledged it only as a matter of bargain and com- 
pact with the Commonwealth.^ Nevertheless, it was 
accepted generally, though reluctantly, and this acqui- 
escence in what, at first glance, seems interfering and 
meddlesome, is readily accomited for, when it is con- 
sidered, that, to the one who owned the navy must be 
committed the task of maintaining open communica- 
tion between the different members of the ansrlican 
family, and of affording them protection on the high 
seas, and that it did tliis at its own cost and charges. 
Acquiescence, then, in this legislation, whereby great 
profits were diverted to the commercial classes of Eng- 
land, was regarded by the colonists in the light of com- 
pensation for benefits rendered ; it was a matter of 
compact. It is true, moreover, that the British Parlia- 
ment, from time to time, asserted legislative authority 
over the colonies, and that, in this persistent conduct, 
it fbially had the passive, if not the active sympathy 
of the king, and it is further true that a notion existed, 
even among the colonists themselves, that the parent 
parliament must be something greater than their own 
puny legislatures ; a central sun, around which the 

1 Life and Works of John Adams, iv, 48. 



CLAIMS OF PARLIAMENT. 61 

lesser orbs revolved. But this notion, more easily 
accounted for by sentimental than by political reasons, 
was eventually rejected by those who entertained it, 
and as they at last took up arms against what they 
styled the usurpations and encroachments of this body, 
it Can be asserted, that, at least, one of the parties to 
the question refused to recognize the intervention of 
this power between the dominions and their sovereign. 
The claim of the British Parliament to leg^islate for 
the colonies, though asserted to this day,^ thus finds 
no sujDport worthy of consideration in the liistory of 
these dominions. 

The fact, then, remains, that a colony was a do- 
minion ; that its people were subjects ; that these sub- 
jects had for their lord and sovereign the person who 
was likewise sovereign of Great Britain ; and that they 

^ " The legislative authority of Parliament extends over the United 
Kingdom, and all its colonies and foreign possessions, and there are 
no other limits to its power of making laws for the wliole empire, 
than those which are incident to all sovereign authority — the willing- 
ness of the people to obey, or their power to resist. Unlike the legis- 
latures of many other countries, it is bound by no fundamental char- 
ter or constitution ; but has itself the sole constitutional right of 
establishing and altering the laws and government of the empire. 
. . . The power of imposing taxes upon colonies for the suj)port of 
the parent state, though not now enforced, was exercised by Parlia- 
ment in the case of the provinces of North America ; and, as is but 
too well known, was the immediate occasion of the severance of that 
great country from our own. But whatever may be urged against 
colonial taxation on grounds of justice or expediency, the legal right 
of Parliament to impose taxes upon all persons within the British 
dominions is unquestionable." May's Laws, etc., of Pai-liament, 06 
et seq. But see Lord Glenelg : '' Parliamentary legislation on any sub- 
ject of exclusively internal concern to any British colony possessing 
a representative assembly, is, as a general rule, unconstitutional. It 
is a right, of which the exercise is reserved for extreme eases, in 
which necessity at once creates and justifies the exception." Pari. 
Pap. (118), 7. 



52 POLITICAL SEPARATENESS OF COLONIES. 

were entitled to make their own laws free from the in- 
tervention of any other people. That this view of 
their political structure was general throughout the 
colonies became apparent during the discussion that 
followed the Stamp Act, and it was to preserve the 
integrity of this structure, that the colonists finally 
embarked upon what proved to be revolution. Had 
not such been really the political fabric, the rising of 
the colonies could not have been justified, and it is to 
be presumed, therefore, that it would not have oc- 
curred. That it was the true one, is sustained by the 
facts, that the original grant by which every colony 
was established issued from the king as sovereign 
lord of the territory occupied ; that he granted the 
lands as of himself alone ; ^ and that none of them, in 
the course of its existence, was ever annexed to a 
realm. Thus the colonies were derived immediately 
from the king, and depended immediately upon him, 
and, not being annexed to any realm, or conjoined 
with any other dominion, were separate dominions and 
independent of each other. The course of royal ad- 
ministration confirms this view, for colonial business 
was always transacted by the sovereign and his assist- 
ants directly with each colony, and never with the colo- 
nies collectively, and thus it is clear that both of the 
only parties in interest regarded each colony as a dis- 
tinct and separate body, and free from the interven- 
tion of any other power. 

Allegiance had no effect to augment, diminish, or 
qualify the characteristic of separateness. It certainly 

^ " Every acre of land in this country was then held mediately 
or immediately by grants from the cfown." Chisholm v. Georgia, 2 
Dallas, 470. 



ALLEGIANCE NO POLITICAL BOND. 53 

did not lessen the disjunction ; for, as a matter of 
fact, as the sentiment of miion gained strength, loyalty- 
waned. Allegiance had no lateral power of conjunc- 
tion ; it did not bind subject to subject, but subject to 
lord; it was individual and jjersonal, not collective 
nor sworn to an abstract, intangible object like the 
commonwealth. It was sworn, not to the crown, 
which represents the j)olitical capacity of the Idng, but 
to the king's person, or to the king in his natural 
capacity. It was due from the subject wherever he 
might be, and it was due to the sovereign wherever he 
might be, though he were a prisoner in the midst of 
an enemy's territory, and restrained from acting in his 
political capacity. It was, therefore, a matter exist- 
ing solely between lord and man, and what binding or 
uniting effect it had between subjects was social and 
moral, not political. 

These relations, then, which existed between the 
king and his dominions, endued, as they were, with 
every principle of Anglican constitution, had the effect 
of making each one self-contained and exclusive of 
the rest of the world. They were, in fact, separate 
and distinct bodies in separate and distinct territories. 
Each held the title to its territory by a gi-ant separate 
and distinct from its neighbors, and, as allegiance was 
an act of the person and related only to the natural 
capacity of the king, there could be little pohtical in 
common between them. The colony of Massachusetts 
was as distinct from the colony of Pennsylvania, as it 
was from the colony of Jamaica. As far as their re- 
lations to the king were concerned, the people of each 
owed individual allegiance ; and the king, in return, 
afforded protection and tranquil enjoyment of gTanted 



54 POLITICAL SEPARATENESS OF COLONIES. 

franchises, witliout the slightest reference to any other 
colony. Had the people of Virginia owed allegiance 
to the king of France, and those of Maryland alle- 
giance to the king of Spain, they could not have been 
more distinct and separate bodies politic, in relation 
to each other, than they were when both bore alle- 
giance to the king of Great Britain. A British sub- 
ject, indeed, residing in one of these colonies, woidd 
have certain rights within the territory of the other, 
had he chosen to transfer his residence thither and 
exercise them, and some did he not so choose: as the 
right to own property there, to inherit lands, and the 
like. But this he had from no unity of the colonies, 
express or implied, but merely from the force of the 
allegiance which constituted him a subject ; a fact 
which gave him these rights in whatever part of the 
British possessions they might fall — as well in the 
Bermudas or Bengal, as in New York or Barbadoes. 
In a word, they were separate and distinct autonomies, 
of which the citizens of one, from the fact of bearing 
allegiance to the same person, were not aliens to the 
citizens of the others.^ 

It follows from this, that the citizens of each colony 
formed a political corporation ^ created by the king, to 
whom they owed particular and sole allegiance ; that 
they were bound by no laws which they did not make, 
and were bound only by those which they made with 
the assent of tliis king when this assent was specifi- 
cally required ; that they possessed common political 
interests, were subject to common duties and obliga- 

^ Development of Constitutional Liberty, 36, 37. 
- " All states whatever are corporations or bodies politic." Chis- 
holm V. Georgia, 2 Dallas, 468. 



SOCIAL EFFECTS OF SEPARATENESS. 55 

tions, and were entitled to common political benefits ; 
that their government was administered for the pur- 
poses of each whole, hut for no others ; and that, con- 
sequently, the colonists of each colony constituted a 
people. It follows further, that none of these colonies 
was bound nor was affected in any way by the laws of 
another ; that no one possessed political interests in 
nor was subject to the political duties and obligations 
of another, nor was entitled to share in another's po- 
litical benefits ; that there was no government whose 
administration was for the purposes of all the colonies 
taken collectively, and that, therefore, there was no 
one people throughout the colonies, but that there 
were as many separate and distinct peoples as there 
were colonies, and that these peoples were autono- 
mous. Thus it was, that they had no common capital, 
and no common army, judiciary, treasury, or governor, 
and thus it was that they had no common ground 
whereon to meet, nor mode of common action. 

This political separateness had its effect likewise, 
economically and socially. No common ground af- 
forded room for honorable rivalry or for strife of in- 
terests ; nor coidd there be conunercial competition 
between the two great producing sections, since the pe- 
culiar productions of each, though flowing to the same 
marts, met with different demand. The North pro- 
duced roots and cereals, the South plants and vines. 
Philadelphia, from its position and extent of trade, 
was the largest and most influential city, yet it cannot 
be said, that there was any one gi-eat commercial or 
social centre ; the commercial classes of England con- 
trolled colonial trade, and London and its court set 



56 POLITICAL SEPARATENESS OF COLONIES. 

tlie fasliion to colonial society. The difficulty o£ inter- 
communication strengthened the tendency to adhere to 
the standard of manners maintained in the old coun- 
try, and to reject any which might be set up in the 
provinces ; for, similarity of manners depends upon 
intercourse, and this upon facility of locomotion, an 
advantage unknown to the colonists. The perils of 
coast navigation being peculiarly great, communication 
was mainly confined to land travel, which, from the 
length and badness of roads, made a voyage to London 
and back a much less serious aifair than a journey 
from Charleston to Pliiladelphia. Thus, the inter- 
course which most directly affects the manners of the 
uj)per classes, (and in those times it was the wealthy 
or the trading classes only that travelled,) was restric- 
ted to ahnost nothing, while on the other hand, it main- 
tained with great persistence its accustomed course to 
the capital of Great Britain. There was too little vari- 
ety of social features to tempt the colonist from his 
home, and, when a grand tour was resolved upon, he 
was not long in choosing between the splendors of Lon- 
don and those of Philadelphia. It is easy to see from 
this, why trans- Atlantic travel remained the mode ; its 
perils were less and its attractions greater. The known 
and fixed standard of social life abroad was ready at 
hand, and, first in possession, kept the field against 
any innovation at home. The rusticity of colonial life 
could not prevail against the polish and elegance of the 
court ; the contrast presented was too unfavorable to 
the former, and distaste, not to say contempt, of any- 
thing that savored of the provincial, was engendered. 
Separate by political constitution, with their external 
relations centring in a distant jsrince, with their man- 



COLONIAL INDIFFERENCE. 57 

ners regulated by those of a foreign court, and with 
their trade controlled by trans- Atlantic marts, it is no 
wonder that they looked to other peoples than their 
own for their standard of social life. Here the affairs 
of one were not the affairs of another, intercourse be- 
tween remote colonies was well-nigh impossible, and no 
interest existed of binding force sufficient to overcome 
the feeling of exclusion and indifference ; and thus the 
political and commercial separateness of the colonies 
extended to their social life and manners. ^ 

This state of feeling had its disadvantages as well 
as advantages, for it is evident that the tendency 
of exclusion is to place society upon a narrow and 
shallow basis ; its action is selfish. Men cannot shut 
themselves uj) from extraneous influences, and be- 
come broader and more humane ; on the contrary, 
they become narrow, and this effect was manifested in 
more than one passage of our colonial history. It is 
not the lack of cohesion that affects us unfavorably 
in surveying the annals of the colonies, for cohesion 
is not expected in a system characterized by disjunc- 
tion, and, moreover, m itself it does not partake of the 
nature of a virtue : it is the apparent indifference for 
each other that grates upon our feelings, and the ab- 
sence of common interest and sympathy. Tliis sjjirit 
of exclusion kept the colonist, for generations, from 
being more than a mere provincial, and it was not 
until the upheaval of the Stamp Act that he began to 
style himself an American. 

Though such was a disadvantage of an exclusive 

^ In 1760 Franklin raaintained that union of the colonies against 
England would be impossible, since all loved the mother country more 
than they loved each other. Works (Sparks), iv, 42. 



58 POLITICAL SEPARATENESS OF COLONIES. 

and restrictive system, it cannot be denied, that sepa- 
rateness had its advantages ; it was, for instance, 
liiglily favorable to the development of local seK- 
government. The race is an energetic one, and is 
distinguished by its capacity for maldng the most of 
the means in hand. A system, therefore, which, by 
making no account of neighborly spnpathy and good- 
will, might have discouraged a people of sociability but 
of feeble temper, lent force to the development of this 
people. For, as remoteness of the sovereign, and per- 
sistence in a laissez-faire policy of administration, af- 
forded no diversion from the home governments, every 
energy and every force of the colonist was given to the 
administration of his o\^^l colony, and these energies 
and forces acquired all the more vigor from the very 
fact that they were pent up and had but a single out- 
let. The stage of culture had not yet been reached 
when tliis energy takes the form of literature, so that 
destitute of this means of expression, what had the 
colonist to do, but to talk law, philosophy, and politics,^ 
and to administer government directly or indirectly ? 
That he did this to good purpose, is sho^vn by the 
burst of admiration with which Chatham directed the 
gaze of Parliament to the little senates in these woods, 
for the colonist attained such skill in administration as 
to remain to this day the highest example we have 
ever produced of mastery of the art of government.^ 
No being was more firmly attached to the soil. He 

1 The autobiographies and diaries of the leading men of the Revo- 
lution afford many instances of the habitual discussion of these subjects, 
especially by young lawyers. They would meet regularly for this 
purpose. Sir Henry S. Maine notices how prevailing was the influence 
of Montesquieu. 

2 Seejaosf, pp. 129, 131-133. 



JEALOUSY OF INTERFERENCE. 59 

loved it as the abiding-place of everything dear to him : 
out of its dust had he been made and to it he expected 
to return. 1 His province was to hun what Laconia 
was to the Spartan ; his cradle, his home, his citatlel, 
liis country, his grave. He was eager to develop its 
resources, to maintain its dignity, to assert its rights 
or to resent its wrongs, and he was exceedingly jealous 
of anything that affected unfavorably its individuahty. 
He stayed not on the threshold, but met the offender 
more than half way, and, next to actual invasion of its 
rights, he feared committing himself to any position 
that might compromise them. Hence this jealousy of 
interference, and this sensitiveness to anything like 
intermeddling, which constantly betrays itseff in our 
colonial history, and hence, too, one main reason for 
the lack of a sentiment of union, and for persistent 
exclusiveness. 

To such an extent was the spirit of exclusion car- 
ried, that one is startled at meeting it mider circum- 
stances and at times in which, to modern notions, its 
appearance is incomprehensible. Thus, the pages of 
our annals teem with instances of what the historians 
style apathy, when neighboring colonies are in the 
presence of great danger. Mere apathy, however, is 
not sufficient to explain insensibility to danger, which, 
to-day their neighbor's, to-morrow may be their own. 
It has an explanation, and this, too, is to be found in 
the separateness of the colonies. For, being separate, 
what concerned one colony did not concern the rest, 
and, therefore, from the standpoint of the colonist, he 
might with equal justice be called upon to assist an 

^ Observe, inter alia, the pathetic and oft-repeated utterances of 
Hutchinson, fcjee Diary and Letters, sparsiin. 



60 POLITICAL SEPARATENESS OF COLONIES. 

East Indian colony from an attack of Sikhs, as a 
neighboring- colony from an attack of Algonquins. So 
long as the security of his own province was not at 
stake, the affair was no concern of his ; it was the 
concern only of the colony whose border had been 
assailed.i It was not until the impending danger 
involved his own security, that he dared to take a step 
upon liis neighbor's territory, for unless called upon 
for aid, he would have to account to the colony upon 
whose territory he had trespassed, and, in any event, 
he would have to justify his infraction of the known 
and determined policy of his sovereign. Gratuitous 
assistance might, in one case, be construed as inter- 
meddling, and, in the other, a violation of a settled 
principle of government. Hence, it was a matter not 
of feeling, but of politics. That this was the view 
generally taken, is shown by the fact, that no apathy 
whatever appears in the case of colonies who made 
ready to respond to a call for aid, or who united 
promptly when the danger of one border affected the 
security of the others : but it took the impulse of self- 
preservation to justify and effect such union, and, as 
has been already observed, the danger over, the con- 
stituents resolved forthwith into their normal condition 
of separateness. It was not, then, lack of public 
spirit, nor jealousy alone, nor insensibility to distress, 
nor apathy itself, which made the colonists slow to 
move at the spectacle of a neighbor's distress, but it 
was the inefficacy of the constitution of the colonial 
system, and of a governmental policy loath to exonerate 

1 See an interesting note, entitled " Military Inefficiency of the Brit- 
ish Colonies," in Parkman's Count Frontenac and New France. 408. 
Also Works of Franklin (Bigelow), ii, 351, 352. 



INDIVIDUALITY OF THE COLONIES. 61 

infraction of its rules : this withheld the means of ef- 
fecting union, that inspired the fear of settmg prece- 
dents which might lead to pohtical complications there- 
after. Thus, when, even on motion of the sovereign and 
not of the colonies, colonial forces were concentrated 
at Albany to resist or attack the French, the troops 
were drawn only from New York and New England, 
the parts immediately affected ; and when Braddock's 
column advanced to the subjection of the enemy which 
threatened the borders of Pennsylvania and Virginia, 
the contingent of Provincials was composed of Penn- 
sylvanians and Virginians only. 

It is evident, from what has been said, that the in- 
dividuality of a colony had strong retroactive sujjport 
from the condition of separateness. This attribute 
was strengthened by the moral effect lent by the di- 
versity of character existing between the colonies. If 
their virtues were alike, their prejudices were dissimi- 
lar and conflicting, and each one had those peculiar to 
itself. The aristocratic colonies regarded the demo- 
cracies as inferior communities, and the democratic 
colonies congratidated themselves upon being free 
from the old-world delusions of the aristocracies. 
Where the Church of England was uppermost, it 
scorned the theocracies as oligarchies, and these, on 
their part, thanked God that they were not as the 
others were. The regions where society was concen- 
trated, looked upon those in which it was dispersed as 
examples of a false conception of social constitution ; 
an opinion which was returned in kind. Degrees of 
latitude were equivalent to degrees of variance in char- 
acter, and each colony, satisfied with itself, sought to 



62 POLITICAL SEPARATENESS OF COLONIES. 

cultivate its own notions and to exclude those of its 
neighbors.^ 

Such was the structural condition of the colonies 
during the colonial epoch. It was emphatically a con- 
dition of separateness, and one which was favored by 
the policy of disjunction maintained by the sovereign. 
One cannot but feel, that a condition existing so long 
without any significant disturbance, must have had its 
foundation in the nature itself of the people. No arti- 
ficial structure, and no mere administrative policy, can 
account for the tenacity with which the colonies main- 
tained their individuality. Natural causes alone ac- 
count for a characteristic, which, in its jDolitical rela- 
tions, is to be described as an absorbing love of local 
self-government. Those who see in the separateness 
of the colonies the effects of a mere divide et impera 

^ In treating of the separateness of the colonies, their points of 
dissimilarity have been indirectly revealed. It may be well to give 
the points in which all the colonies were alike, as they are set forth by 
one so accomplished in political analysis as Bluntschli : — 

" (a) English law, without either landlords or feudal tenure : free 
property in the soU was the basis of the economic system. (6) Essen- 
tial equality of position and rights, and the absence of any aristo- 
cracy like that which still held power in England. This equality was, 
however, broken by marked differences of race [such as those of the 
Indians and the negroes]. ...(c) The constant habit of self-reliance 
in contrast to State-aid. . . . (d) The general education of the people 
by means of national schools. . . . (e) A free constitution of the 
villages, and independent administration of the colonies, {f) The 
small number of officials. ...(g) Hardly any standing troops, their 
place being taken by the militia, (h) The existence of a House of 
Representatives, elected in each colony by the free men, which acted 
with the Senate in making laws, but by itself granted taxes and con- 
trolled the administration, (i) The custom of short tenure of offices, 
so as to provide for frequent changes, (k) Lastly, the gradual devel- 
opment of a free press and freedom of combination." Allgemeine 
Statslehre, or The Theory of the State, b. vi, chap, xxii (Engl, ed., 
1885). 



LAISSEZ-FAIRE. 63 

policy, attribute to colonial docility more than belongs 
to it ; and much more than the other members of the 
anglican family have shown, even when under con- 
ditions more favorable to its exercise than those which 
surrounded the American colonies. And those who 
attribute to provincial seK-importance a characteristic 
so general, and which appears so natural on the face 
of things, fall short of the true explanation, which, as 
lias been observed, is to be found in the race-nature of 
the colonist. Thanks to the conditions of colonial ex- 
istence which permitted these colonies to develop them- 
selves, they came to be natural and complete expo- 
nents of the most powerful forces of their being ; of 
inherent, spontaneous, irresistible individuality in gov- 
ernment, and of abiding love of the soil. Without 
these traits they woidd have become mere factories of 
British commerce, but, with these, they became auto- 
nomies, each of which was as rich in institutions and 
in personal liberty, as England herself was. 

A comparison of the British colonies with those of 
France or of Spain, which bordered them, will show 
them to be creatures of growth and development, and 
that this growth and development is to be attributed 
to their self-government. So well was this understood 
at Whitehall, that the fixed and wise maxim of ad- 
ministration concerning them was, Let them alone : a 
maxim recognized by George II., when he said : " I do 
not understand the colonies ; I wish their prosperity. 
They appear to be happy at present, and I will not con- 
sent to any innovations, the consequences of which I 
cannot foresee." ^ 

^ " Solomon in all his glory," said John Adams, " could not have 
said a wiser thing." Life and Works, x, 347. 



CHAPTER IV. 

SEPAKATENESS OF THE BRITISH COLONIES 

CONTINUED. 

Separateness during the Stamp Act period ; during the Congressional 
period — Congresses of 1774 and 1775 — The Declaration of Inde- 
pendence — Local self-government. 

How dominating and persistent this principle of 
local self-government was, is shown by its manifesta- 
tions during the Revolutionary period, which extended 
from the agitation of the Stamp Act to the adoption 
of the Constitution of the United States. This period 
may be divided into three subdivisions, as follows : 
the time intervening between the beginning of the 
Stamp Act agitation and the Congress of 1774 ; that 
between the meeting of such Congress and the adop- 
tion of the Articles of Confederation, and that which 
ensued until terminated by the adoption of the Con- 
stitution. 

It needs little more than to recall the expressions of 
public feeling during the Stamp Act period — the 
speech of Otis concerning the writs of assistance, the 
addresses of the committees of correspondence and 
congresses, and the like — to see that the underlying 
principle maintained by the colonies, was the integrity 
and independence of their local legislatures and the 
sanctity of their personal freedom. Resistance to en- 
croachment by the British Parliament was the cry, 



UNION NOT YET A FORCE. 65 

and for the reason, that, not being represented therein, 
such parliament was not their own, and, therefore, had 
no right to legislate for them. They had their own 
parhaments, and, to the minds of the colonists, their 
local seK-government being menaced, to prevent its vio- 
lation they united in taking up arms. 

As affairs neared the vortex of actual hostilities, 
one might suppose that the gravity of the situation 
would compel a union of all the governmental forces 
possessed by the colonies. Surely, in the face of the 
overawing danger without and of the perilous distrac- 
tion within, the instinct of self-preservation should 
prompt a complete and harmonious union. Nothing 
of the sort occurred ; it was still mere combination, 
and one which was restricted, incomplete, and inhar- 
monious. This condition can be accounted for — the 
sentiment of union, which had been growmg for ten 
years past, had been too lately awakened to become 
presently an active and willing force ; its character was 
not yet weU enough understood, it was not altogether 
above suspicion ; it exacted too much of those who 
never had been called upon to share their liberties with 
their neighbors, and, in a word, it was still a senti- 
ment, strong enough to effect a combination of arms, 
it is true, but was not strong enough to act the part 
of a binding, cohesive force. It coidd induce a com- 
bination which promised immediate and visible results, 
but when it came to exacting the surrender of liberties 
to a power yet to be created, and for results that could 
not be forecast, it was impotent. A colonist of Rhode 
Island, for example, knew nothing of colonial rela- 
tions, except those existing between Rhode Island and 
the crown ; to him there were none else, and all the 



66 POLITICAL SEPARATENESS OF COLONIES. 

opinion that he coukl entertain upon the present 
troubles was, that his own colony and its fellows were 
in a bad plight together, and that, as the conditions 
were similar, common counsel and common effort were 
better than individual action. Further than this he 
did not go ; as for a common colonial parliament with 
governmental powers, his mind had never suggested, 
much less entertained, such a notion, and, had it been 
broached, he would have rejected it, if on no other 
gromid than that it would be turning over to a new 
and untried creation in America powers which he was 
then denying to an ancient and venerated institution 
in England ; he would be yielding to equals the very 
tiling he denied to those who asserted that they were 
his superiors, and who he half-believed were his supe- 
riors. Accordingly, the Congress in which he con- 
sented to appear, was a body that met merely for coun- 
sel and not for government. 

But, even had this sentiment been strong enough to 
sustain union, the capacity to effect it was wanting ; 
for, so long as the colonies I'emained dependencies, 
they were confined within the limitations of depend- 
encies ; and such organizations, as we have seen, had 
no power to unite. Union of governmental forces in 
the face of administrative prohibition, would be re- 
bellion, and they abhorred and repudiated the thought 
of rebellion. No man can serve two masters, and, so 
long as they held to their allegiance to the king, they 
could serve no one else ; any other position would be 
a contradiction of their assertion that they would suf- 
fer interference in their affairs from none except their 
natural lord, the king. They might counsel together, 
but they could not act as one power ; and that this 



COMBINATION NOT UNION. 67 

was the view taken by them of their position, is clear 
from an examination of the credentials ^ by which they 
empowered their delegates to meet in Congress. One 
and all set forth these things : 1, that the delegates 
were to consvdt and advise with those from the other 
colonies respecting the present troubles ; 2, that Con- 
gress should define and describe the rights of Amer- 
icans with certainty ; 3, that it should devise a plan 
of maintaining, upon constitutional prmciples, the 
ancient union with the mother country ; 4, that this 
general plan, suggested by Virginia and Maryland, 
should oj)erate on the commercial connection of the 
colonies with Great Britain; and, 5, that, when agreed 
upon, the plan should be recommended to all who were 
interested. Thus, the effect of united action would 
result from the simultaneous but individual action of 
the thirteen colonies. 

There is not a word in these credentials, nor any 
internal evidence, leading to the supposition that new 
relations with anybody were contemplated, nor that 
anything was sought for but such a modification of 
the old relations with the crown as would give the ef- 
fect of a constitutional guaranty to their liberties — 
such a guaranty as the English themselves enjoyed 
under the Bill of Rights and kindred securities. Nor 
is there to be found in these documents any expression 
that had the appearance of a colony arrogating to it- 
self the attributes of sovereignty. It will be observed, 
that, in constituting the Continental Congress of 1774, 
the colonies acted in their individual capacity, without 
reference to each other, and that they made common 
cause from no political association, but only because 
^ Journal of Congress, I. See Appendix A. 



68 POLITICAL SEPARATENESS OF COLONIES. 

the principles at stake affected every one alike, and 
because the object sought was the same in every case ; 
that each colony appointed its own delegates, instruct- 
ing them according to its notions of right and policy, 
but making no pretence of conferring power and au- 
thority, which, as a dependency, it did not possess, 
and that, therefore, no colony gave any power or au- 
thority, except for deliberation and advisement only, 
i. e., to ascertain what shotdd be done, not to do ; that 
the purposes set forth were, not to establish a new 
government, but, upon constitutional principles, to pre- 
serve the old one ; and that this Congress was organ- 
ized by the colonies as colonies, and with a carefid 
regard to their separate and independent rights and 
powers ; for it was restricted to declaring what the 
hitherto undefined rights of Americans were, to devis- 
ing a plan of reconciliation by operating on their com- 
mercial character as feeders to British commerce, and 
to ending its deliberations with a recommendation of 
the course agreed upon. 

That the Congress confined itself within th^ limita- 
tions thus set upon it, and recognized its subordmation 
to its creators, is evident from its own action. In 
accordance with the instructions to the delegates to 
settle the undetermined position of the colonist, in 
respect to the crown and to Parliament, the Congress, 
upon report of a committee composed of two from 
each province, made a Declaration of Colonial Rights. 
This Declaration was in the nature of a Bill of Rights, 
and was intended to perform the same office for 
America that the English BiU of Rights had done for 
England ; the latter, of course, not extending to this 
comitry or any of the dependencies, inasmuch as its 



CONGRESS OF 1774 ^4 MERE COUNCIL. 69 

extent was limited to the territory of England. The 
instruction to " operate on the commercial connection," 
the one most vital to the interests of Great Britain, 
was obeyed by adopting the " Articles of Association," 
or the non-intercourse, non-importation, and non-con- 
sumption pledges. The instruction to devise a plan 
for maintaining, upon constitutional princij^les, the 
ancient union with the mother-country, was fulfilled 
by a grave and dignified " Address to the Peoi)le of 
Great Britain," together with " A Petition to the 
King." 1 Thus, havmg advised and considted to- 
gether and set forth their plan, and having obeyed 
their instructions without exceeding them, Congress 
dissolved, and the delegates returned home to report 
to their colonies, through their Assemblies, what they 
had done. 

There is nothing in our history more clear and cer- 
tain than this : that the Congress of 1774, as far as 
its functions are concerned, was nothing more than a 
council. Except in respect to discussion, it had no 
features of a parliament. It was not a legislature ; it 
neither legislated nor did it pretend to legislative 
power. It entertained no bills, it passed no acts, it 
left behind it no statutes. It resolved merely, nor did 
its resolutions have any greater force than that which 
was lent them by their own importance, or by. the char- 
acter of the delegates who made them ; for, the reso- 
lutions, once taken, had no motion of their own, but 
only such as was given by the recommendation of the 
Congress. They carried with them no authority, but 
depended for their efficacy upon the A^dll of those to 

^ The Address was drafted by Jay, and the Petition to the king by 
Dickinson. 



70 POLITICAL SEPARATENESS OF COLONIES. 

wliom they were addressed ; for each colony was at 
perfect liberty to accept or reject tliem. Thus, Con- 
gress could resolve, but not enact : it could recom- 
mend, but not enjoin. Oi'ganized for the sole pur- 
poses of ascertaining and declaring colonial rights 
with precision, and of devising and recommending 
proper measures for the redress of grievances and the 
security of rights, (which, having the force of custom, 
nevertheless lacked the sanctity of constitutional guar- 
anty), when these purposes were accomplished its 
work was done, it was functus officio, and, destitute of 
the power of prolonging its existence, it did not ad- 
journ, but it dissolved and disappeared forever. 

One thing clearly appears : the Congress of 1774 
was not a revolutionary body. 

The character of this assembly is indicated by its 
name ; it was a congress or body of delegates for the 
transaction of matters between parties independent of 
each other. It is clear, that it was constituted by the 
concurrent action of as many peoples as were repre- 
sented in it, and that each of these peoples asserted 
its individuality by casting one vote, irrespective of the 
number of its delegates ; and it is equally clear, that, 
as it was not the creation of one people, neither did 
its organization make these people one. The colonies, 
being dependencies, and having the intention of re- 
maining such, as their instructions to the delegates 
testify, had not the political capacity to effect union. 
For, to effect union requires parties who are as inde- 
pendent of the world as they are of each other, and 
who have, of themselves, the governmental powers, 
executive, legislative, and judicial, necessary to the 
creation of a new body politic which is to be the vis- 



NO NEW SOVEREIGNTY. 71 

ible and tangible form of their union. These powers 
the colonists did not jDossess in entirety. What of 
them they enjoyed, they enjoyed in a union already 
existing with their sovereign but not with each other, 
and this union could not be changed, nor these powers 
assumed in entirety, without severance from that sov- 
ereign. But the Congress was convened for the ex- 
press purpose of maintaining the ancient union. An 
intention to supplant the old regime by a new one, an 
act implying the assumption of entire governmental 
powers and a thoroughly revolutionary act, cannot, 
surely, be deduced from the assemblage of a body 
which made no pretence to the possession of the execu- 
tive, legislative, or judicial powers necessary to accom- 
plish such an end. The colonies, therefore, in con- 
vening this Congress, took no governmental action 
whatever, and any conclusion whereby their political 
conduct as one people is inferred, or that they exer- 
cised sovereign powers, must be wrong. First, then, 
no governmental action being taken, neither the sur- 
render nor the acquisition of constitutional rights and 
powers, by one or by any, could be possible. Secondly, 
the Congress was constituted by the concurrent action 
of a number of peoples, none of whom had cast off 
their allegiance to the kuig ; so that there was no 
nation de facto. Thirdly, the Congress itself, endued 
with no element of permanence (an essential govern- 
mental element), and destitute of governmental powers 
of every description, save that of deliberation and 
discussion, was not a body politic, and, therefore, could 
not be the expression of anything like sovereignty, nor 
could its mere existence ponfer on its creators, one or 
many, the attributes of sovereignty. FourtJdy, the 



72 POLITICAL SEPARATENESS OF COLONIES. 

parties to this Congress made no compact of any 
kind. 

From all this, it is evident that the creation of a 
new sovereignty, or assumption of an old one, cannot 
be inferred. 

The Congress of 1775, an entirely new and dis- 
tinct body, came, hke that of 1774, fresh from the 
hands of the colonial Assemblies ; being created for 
specific purposes, and with no greater scope and powers 
than those of its predecessor. An examination of the 
credentials of the delegates displays the same purposes 
of deliberation and advisement, the same limitations 
upon functions, and the same lack of power and au- 
thority.^ There is the same want of the essential ele- 
ment in constitutional government, permanency.^ It, 
too, was created by as many peoples as were repre- 
sented in it ; these peoples expressed themselves, each 
by one vote irrespective of the nmnerical proportion 
of its delegation, and each delegation had to report 
the proceedings to its colony, as an agent reports his 
transactions to his principal. This Congress, like its 
predecessor, exercised no authority, either de facto or 
de jure. The only original powers it possessed were 
those of deliberation and advisement ; it sat as an 
assembly of the delegated agents of the colonies, rep- 
resenting in no one thing either a people or a sover- 
eign, and could claim no quality of sovereignty, either 
directly or by implication, inasmuch as it was not a 
constitutional body, but one wholly without govern- 

^ See Appendix A. 

2 Massachusetts and South Carolina limited the exercise of their 
delegates' power to the year. 



A COMMITTEE OF SAFETY. 73 

mental qualities or features. In all its doings it re- 
ferred only to the colonies, and never to a people or a 
sovereign. 

The true nature and constitution of this CongresS 
at Its inception, should be kept steadily in view, inas- 
much as confusion may result from the fact, that its 
scope and course of action, though not its nature, 
were completely changed in consequence of revolu- 
tionary events. The conduct of the war fell upon its 
shoulders ; for the affair at Lexington ^ was the signal 
for active hostilities, and thenceforth the character of 
this body conformed to the necessities of revolution. 
Instead of remaining a merely deliberative assembly, 
the Congress became an active body, exercising powers 
with which it never had been endowed,^ and perform- 
ing functions which never had been prescribed. It 
became, in fact, a revolutionary body, a Committee of 
Public Safety ; and, assuming powers which had not 
been granted, it committed acts, the validity of which 
depended absolutely upon the acquiescence and ap- 
proval of its creators. A government de facto., it 
never became one de jure., but maintained its position 
solely by virtue of the necessities of war and the con- 
venience of the colonies. Concert of action was the 
first need of the times, and to this end it was made 
use of as an instrument which was ready at hand. 
Fortunately, its assumption of powers could be safely 
tolerated, inasmuch as the causes which provoked it 
were temporary and peculiar, and devoid of the qual- 
ities which would make such precedent a dangerous 

1 Lexington, 19 April; 2d Congress, May 10, 1715. With the 
exception of New York, all the delegates were chosen previously to 
the affair at Lexington. 

2 Journals, i, 81, 82; 162 ; 112 ; 118, etc. 



74 POLITICAL SEPARATENESS OF COLONIES. 

one ; but that which particularly ensured the public 
safety was, that the colonies could at any moment 
correct abuse of these powers by recalling their dele- 
gates, and thus at once put an end to usurjDation and 
usurpers. As a matter of fact, however, the colonies 
had nothing to complain of Congress in this respect, 
even had they been disposed to criticize censoriously 
the measures taken in their behalf ; for these measures 
do not appear to have been adverse to the principle 
that the new states were sovereign and independent. 
It is apparent that Congress strictly maintained its 
character as a deliberative body as long as possible, 
and that it did not assume powers not belonging to 
it, until the pressure of hostilities compelled it to do 
so. Even then, it never for a moment lost sight of 
its real nature and its real relations to the colonies ; it 
continued to resolve, but not enact ; to recommend, 
but not command.^ The colonies were still the prin- 
cipals, the delegates were still their agents, and never 
by a smgle act did Congress betray the notion, that it 
was accountable for the exercise of power to one peo- 
ple instead of to thirteen peoples, or that there existed 
a general government representing a single sovereignty. 
After the Declaration of Independence, by the force 
of wliich paramount authority was held to exist in the 
people of each state. Congress, now a Revolutionary 
Committee entrusted with the public safety, assumed 
powers exercised by sovereigns, as far as external re- 
lations were concerned ; such as the right to declare 
war and to make peace, to authorize captures, to insti- 
tute appellate prize-courts, to direct and control the 

^ " Congress is properly a deliberative corps, and it forgets itself 
•when it attempts to play the executive." Hamilton to Duane, 1780. 



SOVEREIGNTY RETAINED BY THE STATES. 75 

military and naval operations, to form alliances and 
make treaties, to contract debts and issue bills of credit 
on the public account, and, in general, such powers, in 
the external relations of the country, as were necessary 
to insure the efficacy arising from concert of action. 
But the exercise of these powers was not inconsistent 
with the federal character now borne by the lately 
separate colonies. Many of them could not in prac- 
tice be exerted conveniently by single colonies, and 
none were ever considered, either by Congress or by 
the states, to be exclusive of the latter's right to ex- 
ercise them. On the contrary, different colonies exer- 
cised these powers contemporaneously with Congress, 
by raising troops on their own account, by carrying on 
military operations, and by commissioning vessels of 
war ; thus asserting their sovereignty, and this with- 
out a word of objection.^ Troops required by Con- 
gTess were raised by the states, and the commissions 
of the officers were countersigned by the governors, 
who typified the paramount authority. Congress 
issued bills of credit, but had no power to make them 
a legal tender, nor even to punish counterfeiters ; nor 
could they bind the states to redeem their bills, nor, 
of themselves, raise the funds necessary for redemp- 
tion. Congress could not extend to foreign envoys 
the protection they receive from every nation. In 
June, 1776, Congress recommended the enactment of 
laws defining and punishing treason, and it is very 
clear that it made no pretensions to sovereignty, for it 
takes the gromid that the crime shall be deemed as 

1 " Every state in the Union, both while a colony and after becom- 
ing independent, had been in the practice of issuing paper money." 
Sturgess v. Crowninshield, 4 Wheaton, 203; Marshall, C. J. Some 
states supported what they styled navies ; as witness Pennsylvania. 



76 POLITICAL SEPARATENESS OF COLONIES. 

committed against the colony individually, and not 
against the colonies collectively or federative. Evi- 
dently, there was no sovereignty in this body, how- 
ever governmental it came to be ; whatever was done, 
was efficacious only as far as it was acquiesced in by 
the states, as their refusal of an embargo, requested 
by Congress, shows.i 

Thus, even after the Declaration of Independence, 
the relations of Congress to the colonies remained un- 
changed. Its subordination was complete and unmis- 
takable ; its assum|)tion of powers was acquiesced in 
as a matter of expediency, or act of grace, but not as 
of right. Moreover, these powers, when exercised, 
were not regarded as resting exclusively in Congress, 
but as exerted exceptionally and temporarily by the 
only body, happening to exist, which could express the 
general will and wield the combined strength of so 
many different peoples whose purposes were alike. 
All its functions were exercised upon the external re- 
lations of the colonies, or upon those common affairs 
presented by the peculiar exigencies of war. As for 
the internal life of the colonies or states. Congress 
never meddled with it in the slightest degree. In re- 
gard to this, it never resolved, nor recommended. It, 
indeed, recommended "to the respective assemblies 
and conventions of the miited colonies, where no gov- 
ernment sufficient to the exigencies of their affaii-s 
had been established, to adopt such a government as 
should, in the opinion of the representatives of the 
people, best conduce to the hajipiness and safety of 

^ A striking instance is the law enacted by Pennsylvania, indemni- 
fying those who acted iii obedience to this resolution of Congress. 
2 Dall. Col. L. of Pa., 3. 



DECLARATION OF INDEPENDENCE. 11 

their constituents in particular, and of America in 
general," ^ but it needs no arg-ument to prove that a 
recommendation to establish a government is not med- 
dling with one ; on the contrary, a recommendation to 
others to perform each an act of sovereignty is a 
recognition of sovereignty in these others, and of 
these others there were thirteen individuals. 

It is evident, then, that after the Declaration of In- 
dependence, there was nothing in the states from which 
the existence of one common, general people could be 
inferred, nothing to indicate a nation de facto. So 
far, the union of the colonies or states was exceedingly 
imperfect ; a combination, a partnership, there may 
have been, but of a union of governmental powers 
there was little. If there were any, it must have lain 
in Congress, but, as we have seen, this was a body 
merely deliberative in its inception, and, though as- 
suming governmental powers to a limited extent, it 

1 10th May, 1776. 1 EUiot's Debates, 80, 83. New Hampshire, 
South Carolina, Virginia, and New Jersey adopted state constitutions 
before independence was declared, in compliance with a special 
recommendation to them by Congress to do so, made in 1775. Penn- 
sylvania, Delaware, Maryland, and North Carolina adopted constitu- 
tions in 1776 ; Georgia and New York in 1777 ; and Massachusetts in 
1780. 

One effect of the organization of state governments was the with- 
drawal from Congress of many of the leading men, who returned 
home to take part in the transformation of their ancient colonial con- 
stitutions to new state forms. This withdrawal, the assignment of 
others to civil positions which were incompatible with service in 
CongTess, and the transfer of others still to the army, materially 
weakened this body, and delayed the adoption of the Articles of 
Confederation. The absence of such men as John Adams, Benjamin 
Franklin, Thomas Jefferson, Robert Treat Paine, Francis Hop- 
kinson, Benjamin Rush, Samuel Chase, George Wythe, Benjamin 
Harrison, Csesar Rodney, Edward Rutledge, Arthur Middleton, and 
William Hooper, could not fail to make itself felt detrimentally. 
Hamilton to Clinton, February 13, 1778. 



78 POLITICAL SEPARATENESS OF COLONIES. 

never reached a stage of development wliicli implied 
tlie exercise of executive, legislative, and judicial 
functions, nor ever exceeded the subordination to 
its creators which they had impressed ujjon it from the 
beginning. 

Much has been said and written, to convey the idea 
that the Declaration of Independence was the act of 
one peopl^ instead of thirteen bodies politic, and that 
it implied the existence of a nation de facto. The 
attempt has proved a vain one, and has been made in 
defiance of adverse historical facts, and of the known 
constitution of the body that promulgated it. An 
expression of certain peoples, now fairly united in 
sentiment, but still without political union, except of 
the crudest description, it was ; but not of one people. 
The fact that several parties unite in a certain act, 
does not, jjc^r se, make them one. Such a fact might, 
under peculiar circumstances, be accepted as evidence 
of oneness, if corroborated by extrinsic evidence, but 
the corroboration must be complete and irresistible. 
In this case, however, there is no ground for inference, 
for the evidence, far from being corroborative, is, 
in every respect, contradictory to the notion. The 
political structure of the colonies, the vicarious char- 
acter of Congress, the circumstances under which the 
instrument was produced and its plain terms, all rebut 
the presumption that the Declaration of Indej)endence 
was the act of the people of the colonies taken to- 
gether as one, by the instrumentahty of their repre- 
sentatives, and demonstrate conclusively that it was 
the joint expression of the several colonies, by the in- 
strumentality of their delegates acting in concert. 
In their condition as dependencies of the crown, it 



THIRTEEN SOVEREIGNTIES. 79 

has been seen that the colonies were separate and dis- 
tinct from each other. The sovereignty to which they 
were subject was in this crown ; each held separately 
of the crown, was individually dependent from it, and 
the sovereignty, consequently, was over each but not 
jointly over all. The effect of the Declaration of In- 
dependence was to break off the allegiance of the col- 
onist, and to cast off the dependence of the colony upon 
the crown. As sovereignty, according to the accepted 
doctrine, cannot be in abeyance, it must have existed 
somewhere the instant after the declaration, as it ex- 
isted somewhere the instant before, and as there was no 
other body or bodies politic wherein it cordd reside, 
the conclusion is natural that it resided in the colonies, 
now, by the mere force of the assumption of sover- 
eignty, transformed into states. But, as this sover- 
eignty had not been joint over all but separate over 
each, so could it not vest altogether in one or more, 
but in each. For, there was no one people to receive 
it, but thirteen peoples, and therefore each took that 
sovereignty to itseK to which it had been subject when 
it resided in the crown ; or, to speak more objectively, 
each of the thirteen peoples became sovereign, and 
each of the thirteen colonies became a state. This is 
the character with which they have invested themselves 
in the Declaration itseK, and in this character they 
were recognized by foreign nations, as witness the 
treaty of alhance with France in 1778, the treaty of 
amity and conmierce with the Netherlands in 1782, 
the treaty with Sweden in 1783, as well as the pro- 
visional articles with Great Britain herself in 1782. 

The ancient separateness of the colonies proved so 



80 POLITICAL SEPARATENESS OF COLONIES. 

persistent, that, though modified in various ways, it 
survived the shock of civil discord, and remained the 
most characteristic feature of these communities. As 
the relations of the colonies became closer, this sepa- 
rateness became less and less significant, until we find 
it giving way to a broader and truer form of expres- 
sion, and we recognize the term local self-government 
as the one best defining the radical principle of their 
being. Separateness is a term inconsistent with union, 
yet the fundamental principle which characterized sep- 
arateness, was, nevertheless, the one which provoked 
our Revolution, and which, emerging from the storm 
unshaken, became at last the dominating force of 
union ; this principle was local seK-government. It 
nurtured the colonies when mere settlements, and con- 
tinued its care until it had reared them into states ; it 
had brooded over the waters, and, henceforth, was to 
be the ruling spirit of the new creation. 



■ CHAPTER V. 

THE ARTICLES OF CONFEDERATION. 

The Articles of Confederation expressive of segregation, and also of 
union — Old School and New School — The government designedly 
a weak one; elimination of the "ruler" element — Confederation 
suggested by the New England Confederation of 1643 — Slight 
effect of the Revolution upon the colonial governments — Growth 
of union — Defects of the Articles of Confederation as a govern- 
mental structure set forth by Hamilton. 

That this individuality was the all-compelling im- 
pulse of the new states, as it had been of the old 
colonies, is manifest from an exammation of the Ar- 
ticles of Confederatiftn. These Articles have always 
been regarded from the historical point of view, with 
great interest, inasmuch as they set forth the notion 
of union at that time entertained by the colonies : and 
being the first definite and solemn enunciation of that 
principle, we see not only what it was, but, knowing 
its antecedents, we can definitely ascertain its growth 
and development. Equally interesting is it from the 
political standpoint; for it discloses with certainty the 
bounds and limits beyond which the colonies would 
not go in their effort to create a new government com- 
mon to them aU. The first glance shows that the old 
condition of separateness had left behind it its quali- 
ties and traditions ; everywhere indisposition to yield 
independence of action is manifest, and, where yielded, 
the authority to decide on appeal is retained. The 



82 THE ARTICLES OF CONFEDERATION. 

parties to this compact call themselves the United 
States ; but, were they so ? The Articles undovibtedly 
testify to one thing of profound significance, that the 
sentiment of union had become at last an active polit- 
ical force. But it must be borne in mind, that com- 
bination is not union, and that even partial union is 
not such union as satisfies the notion of unity which 
has prevailed among us since the adoption of the 
present Constitution. Concert of action, as displayed 
by the continental army and by the contribution of 
funds needful to carry on war and manage the business 
of external relations, does not constitute the union 
now exacted by American publicists. In order to a 
complete and perfect union of independent parties, 
there must he a compact between sovereigns hy viv'tue 
of which a body jwlitic is created, centred and 
common to the contracting parties, itself sovereign to 
the extent of its delegated poiMrs and no further, 
which acts directly upon the citizens of each contract- 
ing sovereignty and which contcdns in itself executive, 
legislative, and judicial powers in such integrity and 
with such freedom of action, that the purposes of its 
being may be subserved as promptly and effectually 
as if it had been a sovereign power from time im- 
memorial. Nothing short of this now satisfies what 
may be styled the American notion of union, nor will 
the term be applied for a moment to anything inferior 
to this in constitution. But, where in the Articles of 
Confederation is the evidence of such a union ? where 
the body politic containing in itself the combination of 
governmental powers which are needful to subserve 
readily the purposes of its being ? where are executive, 
legislative, and judicial powers complete, entire, and in 



MODERN NOTION OF UNION. 83 

harmonious combination? Nothing is clearer from 
this instrument, than that separateness had yielded to 
union, and that local self-government was more than 
ever the radical and dominating j)rinciple ; but noth- 
ing, too, is clearer, than that the union then defined 
was an incomplete one, a imion scarcely worthy of 
the name, according to modern notions, and that the 
principle of local self-government, still distrustfid of 
its groimd, could not bring itseK to creating a repre- 
sentative government with any power in complete- 
ness heretofore exercised by the sovereign only. The 
states existed as they exist to-day, but not so the 
Union. 

A sKght scrutiny will prove the truth of the fore- 
going remarks. The first article, announcing merely 
the style of the Confederation, viz: the United States 
of America, is immediately followed by the declaration, 
that " each state retains its sovereignty, freedom and 
independence, and every Power, Jurisdiction and right, 
which is not by this confederation expressly delegated 
to the united states, in congress assembled." This 
clause, in the highest degree prudential, hardly bears 
out the construction sometimes put upon it, that it is, 
in itself, evidence that the parties to it intended no 
union ; on the contrary, it implies a union of the pow- 
ers that are contributed, and further implies that the 
parties to the compact are sovereign and equal. It, 
and the article following, taken together, strongly im- 
ply that there shall be no consolidation ; but they as 
strongly imj^ly also, what is clearly stated in the pre- 
amble, that there shall be union of some kind. But, 
again the question recurs, what kind of union ? The 
second clause, just quoted, answers, " confederation " — 



84 THE ARTICLES OF CONFEDERATION. 

an incomplete and inchoate union, and tliat there may 
be no doubt concerning the degree of unity, the tliird 
clause specifies the nature of this confederation and the 
pui-poses of its creation, as follows : " the said states 
hereby severally enter into a firm league of friendshij) 
with each other for their common defence, the security 
of their Liberties, and their mutual and general wel- 
fare, binding themselves to assist each other, against 
all force offered to, or attacks made upon them, or any 
of them, on account of religion, sovereignty, trade, or 
any other pretence whatever." It will be observed 
how clearly and. unmistakably the notion of indivi- 
duality is conveyed — the said states " severally " 
confederate with each other ; and how precisely the 
nature of the confederation is set forth — it is to be 
merely " a league of friendship." Such a thing as 
contribution of full governmental powers, that is to 
say, a complete union, is not so much as hinted at. 
The states act as sovereigns, but as reluctant sover- 
eigns, who are more disposed to retain than to impart. 
Thus each state retained what was not expressly 
delegated, or, as it would be expressed now-a-days, 
each state not only retained what was not expressly 
delegated, but, in retaining, forbade the exercise of 
implied powers, and the establislmient of powers by 
construction ; and thus protected and guarded in their 
local governments, the states solemnly made together 
— a mere league of friendship, and for the purpose 
of effecting the ends prescribed, and nothing more. 
These purposes or objects by no means involved the 
creation of a central and directly-acting government, 
and thus this instrument is to be regarded as be- 
ing merely what it says it is, a league of friendship 



TWO DIFFERING SCHOOLS. 85 

for the attainment o£ certain and specified objects. 
Inasmuch as it was the first step to the existing con- 
stitution, it has been styled " the First Constitution of 
the United States," a designation at which no one 
should cavil, for crude and rudimental though it be, it 
is, nevertheless, a constitution, and worthy of earnest 
study. One thing respecting it is very clear ; that it 
is more valuable to the historian in showing the 
growth and development of the sentiment of union, 
than it is to the politician as an expression of what 
the American notion of union has been since the adop- 
tion of the present Constitution. 

Diversity of opinion regarding the nature of govern- 
ment and the relations of the citizen, had assumed in 
the course of time two forms, which are not adequately 
defined by the modern names of Conservative and 
Liberal, but to which may be applied those of Old 
School and New School. Whatever the separateness 
of the colonies, there had been no bounds to the ex- 
pansion of political inquiry, which now, in greater or 
less vigor, overspread the land. The class of colonists 
which was content with the British constitution as it 
stood, and which was ready to abide by it without 
question ; the class which scouted the application of 
philosophical inquiry to so practical a subject as that 
of government and was determined to adhere to the 
empire, right or wrong, was to be found mostly among 
the loyalists. When those comprising it had been 
silenced, expelled, or had taken voluntarily their 
places in the opposing ranks, their influence was gone, 
and no further attention need be bestowed upon them. 
The Whigs, or Patriots, remained masters of the field. 



86 THE ARTICLES OF CONFEDERATION. 

but there was anything but unanimity among them, 
and beside the conservatives, who regarded the British 
constitution purged of its obnoxious qualities as well 
as of those features which were not adapted to a youth- 
ful and isolated people, as the best model for an angli- 
can commmiity, there were the radicals who would 
take advantage of the tabula rasa presented by the 
revolt, to put the most daring theories in practice. 
Although the war repressed the formation of these 
differing schools into opposing parties, it is certain, 
that, during the conflict, thought was none the less 
busy, and it is apparent, that upon the return of 
peace, these schools would assert themselves more pos- 
itively than they were then doing. Sentiments had 
been uttered in the first enthusiasm of rebellion, 
which were not sustained by the sober second thought 
of the speakers. The "brotherhood of man" was a 
notion altogether foreign to the colonists, and one 
which the young enthusiasts of a much later date 
were the only ones to welcome ; for in 1777, when 
the plan of Confederation was first submitted, it is 
very clear that our ancestors were not ready for bro- 
therhood of any kind ; a league of friendship was all 
that they would assent to, and even to this reluctantly. 
The single body representing the states and the quah- 
fied union of the colonies under Articles of Confeder- 
ation were wrung from unwilling hands, and they 
whose comprehension of present need and of future 
development led them to advocate a positive union 
wliich should be manifested by a single and responsible 
executive head, found themselves in a wofid minority. 
To part with the very powers which they had taken 
up arms to preserve, had not been contemplated by 



THE FIRST CONSTITUTION. 87 

them, and at once the gi'eat mass of public opinion 
arrayed itself in opj)osition to this notion. 

The Articles of Confederation were presented to 
the states for ratification in 1778. It had taken more 
than three years of rebellion and strife, three years of 
distress within and of hostility without, to effect some- 
thing- which after all turned out to be coalition rather 
than union. Even then it was not accepted until it 
had danced attendance in the ante-chambers of the 
state legislatures for three years longer. It is evident 
that the ancient separateness of the colonies still made 
itself felt in the prevaiHng sentiment of the country, 
and that the sanctity of the local self-governments and 
the supremacy of the individual were considerations 
against which even destruction threatening at the hands 
of their enemies, could not prevail. These were the 
aU powerfid motives of political conduct, and to these 
must be referred every constitutional act committed 
by the new states. Twelve years afterwards, when 
parties assumed definite shape, this was the ground 
upon which opposition to the admmistration took its 
stand ; for the questions upon which the people 
divided were, How much power shall be entrusted to 
the central government, and to what extent shall it be 
endowed with the attributes of sovereignty ? Is gov- 
ernment made for the individual, or is the individual 
made for the government ? The Confederation proved 
to be a weak government, and great has been the ob- 
loquy for being so, which it has encountered at the 
hands of latter-day publicists. One would suppose in 
turning over the pages of writers of to-day, that this 
" First Constitution " was an attempt of a parcel of 
school boys at government-making, and that at best it 



88 THE ARTICLES OF CONFEDERATION. 

serves only for an example to be shunned. It should 
be remembered, nevertheless, that many of the men 
who constructed the Constitution of 1788, had a hand, 
directly or indirectly, in the Articles of Confederation, 
and it is incredible that the skill manifest in the for- 
mer should be the growth of only half-a-dozen years, i 
There is a plain and substantial reason for the gov- 
ernment of the Confederation being a weak one, and 
this is, because it was intended by its makers to be 
weak. 

Why was this creature fashioned without a head? 
The answer is, to prevent its becoming dictatorial. 
Why a mere league, instead of a union ? The answer 
is, through fear of a government of full jDowers be- 
coming greater than its creators. The framers of the 
Articles of Confederation reasoned after this wise : 
No central government can be created without the 
powers necessary to its being, and as such government 
implies perpetuity, the delegation of these powers 
runs the risk of becoming a perpetual abnegation of 
them by the states from whom they must be derived. 
Furthermore, the tendency of central authority is to 
absorb powers, and this, likewise, can occur only at 
the expense of the states, and this absorption will pro- 
ceed until all the powers of the creators are concentra- 
ted in the creature, and the states be subjected to the 
central government, and thus will ensue the evil of 
entrusting power to a single hand. Accordingly the 
framers saw to it, that the central government should 
not have capacity to absorb the states' powers. 

^ The Articles of Confederation did not receive the requisite rati- 
fication of all the states until 1781 ; the present Constitution was sub- 
mitted to the states in 1787. 



ELIMINATION OF ''THE RULER:' 89 

A strong government was an abomination in the sight 
of the members of the Confederation, and they took 
care that there should not be such a one. To them 
strong government meant weak people, and weak gov- 
ernment meant strong people. They had good reason 
for thinking so, for such was the lesson taught them 
by the annals of their own race. To cite the instance 
most frequently referred to at the time ; when, in 
1625, the jjeople of England entered upon their con- 
test with absolutism, they were weak and the ruler 
was strong, but when they emerged from the struggle, 
in 1688, the ruler was weak and the people were 
strong. This lesson was not lost upon the men who 
were now in the third year of a like contest, and they 
shrank from stultifying themselves in their first essay 
at government, by creating the very thing against 
which they were then in arms, viz : too strong a cen- 
tral government. Therefore, with their eyes open and 
with a full comprehension of what they were doing, 
they made their central government a weak one. They 
were determined to eliminate, as far as in them lay, 
the notion of " rule " from government in the United 
States, and to show that in the system of their creating 
there was no place for a " ruler." Had the Articles 
of Confederation no other claim upon our consider- 
ation, this should render them imperishable. 

With the return of peace, this " government of 
supplication " proved inadequate to the task of restor- 
ing prosperity and of enforcing respect at home and 
abroad. The framers of the Articles had overdone 
their work ; they had made the government too weak, 
and speedily it became obvious, that the sustaining 
vigor which had been imparted by the war spirit, 



90 THE ARTICLES OF CONFEDERATION. 

must now be drawn from other sources. Whence 
coukl it be derived except from the powers of the 
states ? Nevertheless, to show that the failure of 
the Confederation was not deemed to have impugned 
the principle which had regulated its creation, and 
that the abhorrence of strong governments should pre- 
vail over other considerations, the resolution to convoke 
the constitutional Convention made no mention of a 
new Constitution, nor did it refer to any other than 
the one already existing, but provided for the revision 
and alteration merely of the Articles themselves. Thus, 
with failure upon their hands, the states could not bring 
themselves to the point of creating a strong or "ruler " 
government, but were willing to accej)t improvement 
only of that which they then had. The Convention, 
however, turned its back upon the limitations set by 
Congress, and gave to the country an altogether new 
and different instrument. This arrogation of powers 
came near causmg the rejection of the present Consti- 
tution. 

Such was the political reason for this inefficient 
government ; there is, furthermore, a historical reason 
for making it a mere league. Never had there been 
a form of government which united in a completely 
developed system the state and national elements. 
Our ancestors, therefore, had no such example before 
them, and never before had they reached the stage 
where such a form was to be evolved as a natural pro- 
duct of their conditions. They had no other models 
than the numerous leagues and confederations of for- 
eign or of ancient states. Their aversion to entrust- 
ing power in a single hand, whether it were the hand 
of a person or of a corporation, forbade their adopt- 



NEW ENGLAND CONFEDERATION. 91 

ing any of the examples of modern confederation, and 
disposed them to regard more favorably the leagues or 
confederations of ancient times. There had been, how- 
ever, an instance of confederation, imperfect though it 
was, among a portion of these very colonies, which was 
not without its effect. The New England Confedera- 
tion of 1643 had fairly subserved the purposes of its 
organization, and had lasted for nearly two genera- 
tions ; and this, though destitute of mandatory jDower, 
and without an executive chief or headship. Why, 
then, shoidd not the purposes of the new states be 
accomplished by a like combination ? The foremost 
duty of the moment was the successful conduct of the 
war : this war had been conducted so far with reason- 
able success by a Congress, or Committee of Public 
Safety : if a Congress without ascertained and de- 
fined powers could do so well, a Congress with such 
powers could do still better : a bridge over the troubles 
of the present was all that was needed, and such a 
bridge would a confederation without headship be. 

The Articles of Confederation, manifestly, were the 
outcome of civil commotion and confusion. The Con- 
gress had been acting the part of a Committee of 
Public Safety, and, accepting it as it stood, the Arti- 
cles merely constitutionalized its action. The experi- 
ence of several years of warfare had shown what 
course was to be pursued, what needs should be re- 
lieved, and what purposes subserved. The Congress 
was a body which had long outlasted the period it was 
intended to endure, and the recollection of a Long 
Parliament was an ever present one. A revolutionary 
body exercising governmental functions, might, by the 
provocation of circumstances, if not by the mere force 



92 THE ARTICLES OF CONFEDERATION. 

of time, arrogate to itseK power wliicli would disdain 
the acquiescence of its creators to establish its validity ; 
and the feeling grew that it was high time to place 
constitutional limitations upon a servant capable of 
becoming greater than the master, and high tune to 
define constitutionally the limits of the union de facto 
which already existed. Accordingly, Articles of Con- 
federation were proposed, and, after a delay which 
brought the war almost to the closing scenes of active 
opei-ations, they were adopted. Congress was not so 
much empowered, as it was recognized ; that is, a ter- 
mination was put to its existence as a revolutionary 
body or Committee of Safety, and henceforth its j^ro- 
ceedings were to be invested with constitutionality. 
It had been exercising governmental functions all 
along, it is true ; but, while powers were now solemnly 
conferred, they were also definitely ascertained and de- 
scribed, and, by the same instrument, the retention of 
undelegated powers in the states and the limitation of 
the delegate's term to one year, afforded security 
against abuse of authority. A more cautious, sus- 
picious, grudging compact was never penned. How- 
ever prodigal the colonists might be of their blood, 
they were miserly of their powers : and justly so, for 
the lessons of history were so many warnings against 
free peoples parting with their independence ; and, 
certainly, if ever there is a period of weakness when 
advantage can be taken, it is in the moment of trans- 
formation, when putting off an ancient character they 
are not yet invested with the new. 

One great advance in the jurisdiction of Congress 
was made by the Articles of Confederation : it be- 
came a legislative body, so far as the subjects allotted 



CONGRESS CONSTITUTIONALIZED. 93 

to it were concerned. As to these matters, it could 
pass ordinances ; but as to those not submitted ex- 
pressly to its action, it remained deliberative and ad- 
visory, and it could resolve and recommend only, but 
not enact. Thus, its legislative power was yet incom- 
plete and restricted ; ^ and it is a striking illustration 
how feeble was the influence of the Articles of Con- 
federation, and how little they contributed to repre- 
sentative government and to the transformation of 
union from a sentiment into a governmental force, that 
the war was virtually fought, treaties made, and con- 
federation organized, without them. This of itself 
shows, that the union which carried the states thi'ough 
the war, was not political union, but was mere cohe- 
sion induced by the coercive pressure of hostile forces. 
The successful result of the revolt may be pointed to 
in support of the conclusion, that the government, 
under the Articles of Confederation, must have been 
reasonably complete, inasmuch as, through its direc- 

1 Hildreth says, vol. iii, 402 : " Instead of increasing the authority 
of Congress, the Articles of Confederation tended rather to limit it. 
Sessions for the future were to be annual ; the delegates to be ap- 
pointed for a year, but liable at any time to be recalled, and incapa- 
citated to serve more than three years in six, or to hold any federal 
office of emolument. On all important points, the assent of nine 
states was required. What added to the embarrassment, and proved 
a serious detriment to the dispatch of business, no state was to be 
considered as voting unless represented by at least two delegates. In 
relation to peace and war. Congress possessed, under the Articles of 
Confederation, most of the powers now exercised by the federal gov- 
ernment, but without any means of raising a revenue independently 
of state action except by paper issues and loans. . . . Congress 
might make requisitions on the states ; but as it had no means to en- 
force them, the oftener they were made the less they were heeded. 
The only substantial addition made by the Articles of Confederatibn 
to the powers of Congress, consisted in the authority to pass ordi- 
nances on the subjects within its control." 



94 THE ARTICLES OF CONFEDERATION. 

tion, our institutions survived with remarkable in- 
tegrity the convulsions of civil war. But, the fact is, 
that Congress, which was almost the only subject of 
the Articles, had little more to do with the poKtical 
than it had with the social institutions of the country. 
Like all revolutionary bodies, its inmiediate concern 
was the progress of the strife, and it accomplished its 
purpose, which was a specific one, and one which was 
obviously extraneous to the inner political life of the 
colonies. This Confederation had nothing to do with 
the internal administration of the colonies : colonial 
life had gone on uninterruptedly before it was ever 
heard of, and went on regularly during its existence, 
and as the Assemblies, though disturbed, were not im- 
paired by the military operations, they survived in 
entirety.^ The Confederation had no direct action 
upon the colonies and represented nothing that had. 
The war, on the part of the colonies, was waged prin- 
cipally to preserve these local governments, and the 
office of the federal government was to stand between 
them and their foes. This it did ; the Assemblies con- 
sequently preserved their integrity, and, had the war 
terminated adversely, would have emerged from it in 
much the same condition as they did when it termi- 
nated favorably. The vitality of colonial life lay in 
the different peoples and was expressed through their 
local Assemblies: Congress represented the external 
action and the defensive force of these combined peo- 

^ During the whole war the British were iinahle to erect and sus- 
tain any civil g-overnment whatever : the colonial assemblies main- 
tained possession of the field without effort. For consequences of 
this, from a military point of view, see paper drawn up by Benedict 
Arnold for the information of the king, in 1782. Arnold's Life of 
Benedict Arnold, Appendix, 421. 



VITALITY OF LOCAL GOVERNMENTS. 95 

ples.^ It must not be forgotten, that the war was 
more than half over and the most important part of 
the work of achieving independence accomplished, be- 
fore the Confederate government had any existence. 
Inasmuch as most of the states had signed the Arti- 
cles when presented to them, and the expectation was 
general that those declining to do so would eventually 
give in their adhesion, they doubtless afforded a 
standard by wliich Congress regulated its action : but 
this is presumptive only, not historical, and the fact 
remains, that as, to be valid, the signatures of all the 
states were required, so long as any of these declined 
to sign, the Articles were not a constitution, and the 
federal government was not a body politic. The 
necessity of acceding to tlie Articles could not be very 
pressing upon states whose leisurely action is shown 
by one of them not signing until 1779, another until 
1780, and the last not until 1781 : yet, all this time, 
the local governments pursued their natural course, 
and, hence, it is evident, that the unimpaired vitality 
of these governments was not dependent upon so tardy 
and so inchoate an instrument as the Articles of Con- 
federation. ^ 

^ " The powers delegated Ly the proposed constitution to the fed- 
eral government, are few and defined. Those whicli are to remain in 
the state g-overnments, are numerous and indefinite. The former will 
be exercised principally on external objects, as war, peace, negotiation 
and foreign commerce. The powers reserved to the several states 
will extend to all the objects, which, in the ordinary course of affairs, 
concern the lives, liberties and properties of the people ; and the 
internal order, improvement, and prosperity of the state." The 
Federalist, XLV (Madison). 

^^ " The state governments may be regarded as constituent and 
essential parts of the federal government ; whilst the latter is nowise 
essential to the operation or organization of the former." The 
Federalist, XLV (Madison). 



96 THE ARTICLES OF CONFEDERATION. 

The American Revolution had little of the character 
of a civil war. It was really waged against a distant 
and external power, and for nothing that was before 
the eyes and could be seen, but for the preservation 
of a principle or set of principles. The colonial gov- 
ernn^ents, in the course of time, had grown to be so 
republican, that the repudiation of monarchy had 
little effect upon them : they remained, in principle, as 
they had been before.^ So with the social constitu- 
tion : there were no classes to be uprooted, banished, 
or slaughtered, no local institutions to change, none to 
destroy. There was nothing which war-for-preserva- 
tion-of-principle coidd affect, and, consequently, when 
the storm had passed over, the local governments and 
society emerged miscathed, and more fresh and vigor- 
ous than ever. Unless it was to adapt old forms to 
novel conditions, or to paint an eagle in the place of a 
crown over the Speaker's chair, or to widte the word 
"people " instead of "king," there was really nothing 
to be done in any of the state capitals. Why should 
there be ? What changes of political constitution had 
there been ? None that were vital : the war had been 
fought to prevent change and to preserve integrity, 
and, these ends effected, there was nothing to memo- 
rialize, notliing to commemorate.^ 

Down to the time, then, that we became an inde- 
pendent power, separateness of colonial constitution, 
restricl;ed intercourse between the colonies, and espe- 

^ See note 2, antea, pp. 48, 49. 

^ " The Revolution of 177(5 did not subvert g-overninent in all its 
forms. It did not subvert local laws and local administrations." 
Webster, Works, iii, 460. 



COMMON RESPONSIBILITY. 97 

cially the relegation of every element of political life 
that smacked of sovereignty, to the control of a cen- 
tral and distant power, prevented community of senti- 
ment or even effective concert of action. Massachu- 
setts could not be influenced by the social constitution 
of Virginia, where all were either owners or owned, 
and therefore Massachusetts took no interest in Vir- 
ginia. She was not accountable in any way for 
Virginia's social structure or for her political acts : to 
the king in Privy Council alone belonged the right of 
interference. As the colonies were not united but 
were separate, there could be no one people common 
to them, and, therefore, the inhabitants of each con- 
stituted a people by themselves. It is plain, too, that, 
there being no union, there was no common ground 
upon which all the sisterhood could stand as one, nor 
any upon which repugnant colonies coidd interfere 
with each other. It was a political impossibility, 
therefore, for colonies of different notions and habits 
to intermeddle, and there was little incentive for con- 
flicting ideas to express themselves, and less oppor- 
tunity for one set of notions to assert itself at the 
expense of another. With the union of the colonies, 
incomplete as it was, under a central and common gov- 
ernment created by themselves and existing on their 
own soil, all this was changed. The sense of restraint 
by a sujjerior was gone. It is not enough to say, that, 
under the new order of things, that which affected one 
colony affected all ; we must go further, and recognize 
as the most positive result of union, that what was the 
political and social constitution of one colony affected 
vitally all the rest.^ Be the union what it may, com- 

^ " Who can predict, what effect a despotism, established in Massa- 



98 THE ARTICLES OF CONFEDERATION. 

plete or incomplete, one of original or of delegated 
powers, a federation or a consolidation, the constitu- 
tion of a single element of the body affected all the 
other elements, morally if not politically. All the 
diverse interests now held relation to the common weal ; 
they now had a common ground whereon to meet, and 
for many such interests, indeed, there was no other 
field of action. The accessibility of this central gov- 
ernment invited reciprocal criticism, rivalry, and inter- 
ference, and thus an ever present incentive to discord 
rose among the states.^ 

It is the perfect comprehension of the changed con- 
dition of their political relations to each other, that 
explains the creation of so weak and futile a power 
as the one which had for its constitution the Articles 
of Confederation. Men were reluctant to hazard the 
real indej)endence they had enjoyed as colonists ; for 
more benign relations never existed than were those 
which had been maintained for generations between 
the crown and the American colonies. It cannot be 
too often insisted upon, that the colonists took up arms 
against the mother-country, not to gain more than 
they already had, for their j)olitical condition was al- 
most Utojoian, but, to jsreserve what they already had. 
Nay, they hardly hoped so much, for the books are 
full of the utterances of the leaders in rebellion, all 
going to show that they had no expectation of the 
future being a continuation of the happy past known 

chusetts, would have upon the liberties of New Hampshire or Rhode 
Island; of Connecticut or New York?" The Federalist, XXI 
(Hamilton). 

1 For condition of the country after the war, resulting' from the 
impotence of the general government, see Marshall's Life of Wash- 
ington, vol. ii, chap. iv. The Federalist, XV. 



REPUGNANCE TO UNITY. 99 

to them and their fathers. The Grenville, Townshend, 
and Lord North administrations had brought them re- 
luctantly to the conclusion, that this well-nigh ideal 
condition was gone forever, and that the future was to 
be as dark as the past had been bright. To save what 
they could of this free hfe, was the motive of their 
rebellion. Tliis successfully accomplished, they had 
to face the necessity of creating a central power. 
But, if the ancient royal authority, with its might 
and orderly administration, had failed them, what was 
to be expected of a novel and feeble creature of no 
higher origin than themselves, and without the impos- 
ing effect of tradition and history? If the ties of 
blood had failed to keep mother and child together, 
would they hold brethren to each other? If conflict- 
ing commercial interests had brought upon them the 
hostility of the home government, would they not like- 
wise place the weak states at the mercy of the strong ? 
Did not the ancient local prejudices which had been 
harmless from want of a common field of action, and 
the diversity of social constitution, hitherto unfelt, 
now offer new motives of dissension ? Community of 
interest was the only tie, yet community of interest 
was defined and restricted, while contrariety of inter- 
est was undefined and limitless. Indeed, one element 
of community of interest, and the most powerful one, 
would be eliminated by the very achievement of inde- 
pendence — they would no longer be bound together 
by the coercive force of external pressure. 

Thu.s it was, that, distrustful of their own ability, 
and suspicious of each other, they dallied over the 
work of providing a federal constitution, and that, 
when completed, they afforded the spectacle of a gov- 



100 THE ARTICLES OF CONFEDERATION. 

ernment, if such it may be styled, without a perma- 
nent head, .the executive functions being feebly per- 
formed by a committee ; of a Congress consisting of 
a single house, for there was not even a council ; and 
of a judiciary without a bench of judges. There was 
no general power to lay or to compel the payment of 
taxes, to collect revenue, to raise troops, or to build a 
lighthouse. The states i-etained m reality every direct 
administrative function, for it was in the power of a 
small minority to block the wheels of government 
itself.^ Congress was neither simply executive, legis- 
lative, or judicial, but an inchoate and confused com- 
position of these three governmental elements. It 
need hardly be said, that it augmented rather than 
diminished the confusion of revolutionary times ; and 
that success resulted in spite of, rather than by reason 
of it. The explanation of this abortive production, is 
partly to be found in the jealousy which shrank from 
lending to any one member of the federation the pre- 
ponderating influence which }night be derived from 
the fact of the executive being chosen from it, and in 
the dread each had of weakening itself by undue con- 
tributions of men and material. The small colonies 
feared the great, who, in turn, were jealous of each 
other, and thus ensued an organization which has been 
well denominated a rope of sand. It is evident, that 

^ " Congress, from the non-attendance of a few states, has been 
frequently in the situation of a Polish diet, where a single veto has 
been sufficient to put a stop to all their movements." The Fed- 
eralist, XXII (Hamilton). 

Where states failed to comply with the requisition, they could un- 
doubtedly be compelled to do so by the other members of the Con- 
federation, according to the laws of nations : but it is very evident, 
that the mere application of force would end in the dissolution of the 
Confederation, and that the remedy would defeat itself. 



THE GOVERNMENT OF SUPPLICATION. 101 

the sentiment of union was not yet strong enough to 
overcome the ancient condition of separateness, and 
that the notion of nationality had no allurements per- 
suasive enough to effect rehnquishment of powers. 
Sooner than remedy these evils by the creation of a 
central government at the expense of rights and fran- 
chises, the states endured them for eleven years, before 
coming together not to create a new power but to 
reform the old one.^ 

"The great and radical vice, in the construction of 
the Confederation," says Hamilton,^ " is in the prin- 
cij)le of legislation for states or governments, in their 
corporate or collective capacities, and as contradis- 
tinguished from the individuals of whom they con- 
sist." In other words, the defect of government 
imder the Articles of Confederation was, that it was 
a mere league of states, and that it exercised no direct 
action upon the citizen. Though this principle, which 
he styles the parent of anarchy, does not run through 
all the powers delegated to the Union ; yet it pervades 
and governs those on which the efficacy of the rest de- 
pends. We have already clearly seen, however, that 
such government was not the residt of ignorance so 
much as it was of intention ; the notion of any gov- 
ernment requiring cession of powers being repugnant 
to the states,^ and a mere league being the utmost to 
which they were disposed to assent. What he means, 

^ " This government of supplication cried aloud for its own re- 
form." Randolph, Atty. Genl.. arg., Chisholm v. Georgia, 2 Dallas, 
423. 

2 The Federalist, XV. 

^ " They [the states] have a mortal reluctance to divest themselves 
of the smallest attribute of independent separate sovereignties." 
Humphries to Washington, Jan. 20, 1787. 



102 THE ARTICLES OF CONFEDERATION. 

then, by " the great and radical vice," is, that a league 
was a form of government inadequate to the changed 
conditions of the new states. He enumerates its de- 
fects^ as follows: 1. The total want of a sanction, 
i. e. penalty, to its laws ; whereby it resulted, that the 
United States had no power to exact obedience or 
punish disobedience to their resolutions, either by 
pecuniary mulcts, by a suspension or divestiture of 
privileges, or by any other constitutional means. 
There was no express delegation of authority to them 
to use force against delinquent members. 2. The 
want of a mutual giiaranty of the state governments ; 
without wliicli they were bereft of assistance in re- 
pelling domestic dangers. 3. Tlie princijile of regu- 
lating the contributions of the states to the common 
treasury and to the armj^ by quotas ; whereby glaring 
inequality and extreme oppression ensued, the system 
of quotas and requisitions, whether appHed to men or 
money, being a system of imbecility and of inequality 
and injustice. 4. The want of a power to regulate 
commerce ; which operated as a bar to the formation 
of beneficial treaties with foreign powers, and gave 
occasions of dissatisfaction between the states. 5. 
The interfering regulations of some of the states; 
which caused umbrage and complaint to others. 6. 
The right of casting the vote of a delegation regard- 
less of its numerical proportion to the others ; whereby 
every idea of proportion, and every rule of fair repre- 
sentation, was condemned ; contradiction given to the 
fundamental maxim of republican government, which 
requires that the sense of the majority shoidd prevail, 
and opportunity afforded to foreign corruption as well 
1 The Federalist. XXI. XXII. 



LACK OF POWERS. 103 

as to domestic faction. 7. The want of a judiciary 
power ; to avoid the confusion which unavoidably re- 
sults from the contradictory decisions of a number of 
independent judicatories, and this is the more neces- 
sary where the frame of government is so compounded, 
that the laws of the whole are in danger of being con- 
travened by the laws of the parts. 8. The organiz- 
ation of Congress in a single assembly ; being itself 
inadequate for the exercise of those powers which are 
necessary to be deposited in the miion. 9. That the 
Articles of Confederation never had a ratification by 
the people, but had rested on no better fomadation 
than the consent of the legislatures. Owing its rati- 
fication to the law of a state, it had been contended 
that the same authority might repeal the law by which 
it had been ratified. However gross a heresy it may 
be to maintain, that 2i party to a (compact has a right 
to revoke that compact, the doctrine itself has had 
respectable advocates. The possibility of a question 
of this nature, proved the necessity of laying the 
foundations of our national government deeper than 
in the mere sanction of delegated authority.^ 

^ See also Madison's specification of " the vices of the Political sys- 
tem of the United States," still further enlarged upon and in greater 
detail than Hamilton's enumeration. Works, vol. i, p. 320 : and see 
Edmund Randolph's exposition of the weakness and lack of powers 
of the Confederation, in convention. Elliot's Deb. i. 



CHAPTER VI. 

THE CONSTITUTION. 

The Constitution a necessity — It guarantees the integrity of the state 
governments — Its inherent conservatism — In it the sentiment of 
union has become a dominating political force — The Constitution 
terminates the Revolution and hands down its gains — Federation 
and popular representation — Apportionment of taxation and repre- 
sentation ; a compromise between the North and the South — The 
guaranty of a republican form of government. 

The coercive pressure which had bound the new 
states together, ceased with the cessation of hostihties, 
and the general distress and confusion which ensued, 
compelled them to betake themselves to the repulsive 
task of creating a power strong enough to enforce re- 
spect without and to maintain order within. In the 
absence of apposite examples ^ nothing could be pre- 
dicted of such a power. They approached this task, 
then, with fear and trembling, and if there was one 
sentiment common to them all, it was, that their ancient 
independence of each other should not be compromised 
by undue contributions of rights and franchises or by 
undue contributions of men and material.^ One thing, 
however, stared them in the face ; the necessity of cre- 

^ See review of historical illustrations : The Federalist, XVII, 
XVIII, XIX, XX. 

2 " Why should we do more in proportion than those who are era- 
barked with us in the same political voyage ? Wliy should we con- 
sent to bear more than our proper share of the common burthen ? " 
The Federalist, XV. 



DEMAND FOR COMMON SOVEREIGNTY. 105 

ating a substitute for the late imperial government, 
for, under tlie Articles of Confederation, they had no 
common head, no conunon army, no common judiciary, 
and, at last, no common credit.^ Were it merely to 
evoke and maintain internal order, the work could be 
performed by supplying the now known defects of the 
Articles, but it was clear, that a union of thirteen 
states required something more than provisions for 
domestic tranquillity. Such a combmation could not 
exist without taking upon itseK the character of a 
national power, for it was a mere question of time 
when the federation would be regarded by the world 
as one of the great powers. Already its advent had 
involved treaties of alliance and of commerce, and it 
was impossible to ignore the fact, that the act of inde- 
pendence, by inducing recognition of the combined 
powers of the colonies, had thrown upon it also the 
responsibilities inhering in any member of the family 
of nations. But, to maintain such a character, re- 
quired the exercise of sovereignty, and it was neces- 
sary, therefore, to invest the new government with 
sovereign powers.^ How uncongenial the creation of 

1 " We may indeed, with propriety, be said to have reached almost 
the last stage of national humiliation. . . . We have neither troops, 
nor treasury, nor g-overnment. . . . We seem to have abandoned its 
cause [that of public credit] as desperate and irretrievable. . . . That 
most useful kind which relates to borrowing and lending [private 
credit], is reduced within the narrowest limits, and this still more 
from an opinion of insecurity than from a scarcity of money." The 
Federalist, XV (Hamilton), wliich see for description of the country's 
condition in 1787. 

- " The ground-work being laid, the great objects which presented 
themselves were : 1. To unite a proper energy in the Executive, and a 
proper stability in the Legislative departments, with the essential 
characters of Republican Government. 2. To draw a line of demarca- 
tion which would give to the General Government every power requi- 



106 THE CONSTITUTION. 

a new power was to men fresli from the subversion 
of the okl, and how repugnant the substitution of 
the unknown and untried for the known and tried, 
must be left to the imagination. We have seen, that, 
when the first congresses came together, there was 
nothing in the credentials of the delegates or in their 
action, that betrayed a suggestion even of the colonies 
creating a new and strange government. Later on, 
when, in the rapid course of events, independence 
assumed portentous form, and actually declared itself, 
there is still nothing to indicate that the formation of 
a great power had entered the minds of the colonists. 
It is safe to say, that, when the colonies resorted to 
arms, no colony regarded the combination with its fel- 
lows as conunitting it m any sense to further con- 
junction after the troubles were over ; redress of griev- 
ances was the only object sought. The combination, 
forced upon the new states by outside pressure, was of 
the barest prudential nature, and was merely a war 
measure. As the need of concert of action became 
more and more apparent, it dawned upon the public 
mind, that, should the independence lately declared 
ever be established, some sort of combination might 

site for general purposes and. leave to the states every power -which 
might be most beneficially administered by them. 3. To provide for 
the different interests of different parts of the Union. 4. To adjust 
the clashing pretensions of the large and small States. . . . The due 
partition of power between the General and local Governments, was 
perhaps, of all the most nice and difficult. A few contended for an 
entire abolition of the States ; some for indefinite power of Legislation 
in the Congress, with a negative on the laws of the States ; some for 
such a power without a negative ; some, for a limited power of legis- 
lation, with such a negative ; the majority, finally, for a limited power, 
without the negative. The question with regard to the negative, 
underwent repeated discussions, and was finally rejected by a bare 
majority." Madison to Jefferson, Oct. 24, 1787. 



DISILLUSIONS OF PEACE. 107 

be advantageous even in times of peace ; a league per- 
haps, or an Aniphyctionic Council : but we have posi- 
tive evidence, in the written words of the Articles of 
Confederation, that, as late as 1781, the colonies had 
entertained no further political connection than that 
which is contained m the least responsible of all com- 
binations, " a league of friendship." Even this slight 
tie had been submitted to tardily and reluctantly, and 
had been borne with a grace so ill, that it was con- 
temptuously ignored the moment that peace brought 
to the new sovereigns the exliilarating sensations of 
independence. 

But, though peace had brought its illusions, it bore, 
too, its disillusions. Primarily among these was the 
realization, that, in permitting the common govern- 
ment, called the Congress, to act for the common ben- 
efit, the states had incurred responsibility that was 
common. Treaties in the name of all together had 
been ratified, and, worse than this, indebtedness con- 
tracted by all together, bound them to foreign powers 
as well as to their own people. The fatal first step 
had been taken ; i and a colonist, who, at the outset, 
had flattered himself with visions of complete inde- 
pendence of the world, and the spectacle of his colony, 

1 " Prior to the date of the Constitution, the United States had, by- 
taking' a place among- the nations of the earth, become amenable to 
the la-ws of nations ; and it was their interest as well as duty to pro- 
vide, that those laws should be respected and obeyed ; in their national 
character and capacity, the United States were responsible to foreign 
nations for the conduct of each State, relative to the laws of nations, 
and the performance of treaties. . . . While all the States were bound 
to protect each, and the citizens of each, it was highly proper and rea- 
sonable, that they should be in a capacity not only to cause justice to 
be done to each, and the citizens of each ; but also to cause justice 
to be done hy each and the citizens of each." Chisholm v. Georgia, 
2 DaUas, 474 ; Jay, C. J. 



108 THE CONSTITUTION. 

not only irresponsible to a superior, but free from en- 
tangling alliances of any sort, now realized tliat the 
necessity of self-preservation had already betrayed him 
into something more serious than a temporary alliance 
or even league. He had thrown off the known for 
the miknown ; he had turned his back on the past, 
only to face a forbidding and menacing future, and 
had severed liimseK from a limited sovereignty only 
to incur subjection to one which might prove despotic. 
The fears that had prompted him to resist encroach- 
ment upon his self-government, now returned with 
tenfold force as he fancied its very existence at stake. 
As his illusions were dissipated, and the realization of 
the necessity of creating a central government took 
their place, one question absorbed his thoughts : How 
should his state retain its sovereignty, and yet create 
a central government which should be a body politic 
and exercise sovereign powers? History refused to 
come to his aid. 

Nevertheless, he answered the question ; ^ the work 
was done, and done so well, that it has been a marvel 
ever since then. The cliief significance of the Articles 
of Confederation, in the historical sense, is, as has 
been seen, that, primarily, they represent a serious 
and earnest effort to effect constitutional concert of 
action between parties which were constitutionally sep- 
arate ; and next, that this separateness was so strong 
and stubborn, that it consented to yield but little 
ground to the necessities imposed by the combined 

1 The Constitution was presented to the people, September 17, 1787 : 
the day appointed for the meeting of this Convention was the 14th of 
May, but such was the dilatoriness, that it was not until the 25th that 
Washington took the chair as President, and then seven states only 
had appeared. 



RESERVATION OF POWERS. 109 

forces of a foreign war and of internal distraction. 
The most striking feature of the adoption of the pres- 
ent Constitution, in the same historical sense, is, that 
the development of the sentiment of union had suc- 
ceeded in overcoming the ancient condition of sep- 
arateness, and the ancient repugnance to part with 
powers,^ to such an extent, that states relinquished to 
an untried body of their own creation, powers and 
jurisdictions for which they had lately given their 
blood, and the exercise of which they had denied to a 
government which was ancient, known, and which had 
been handed down to them by their fathers. 

The notion, that, these powers and jurisdictions 
once yielded, the colonist submitted as to the inevi- 
table, and took no more thought of them, must not be 
harbored for a moment. Nothing was further from 
their thoughts, than that, in parting with the exercise 
of these rights, they were surrendering their property 
in them. So far from it, they regarded them as sub- 
ject to the same conditions as franchises are when 
gi'anted by a sovereign, that is, that though these 
powers had been delegated in perpetuity, the exercise 
of them was strictly subordinate to the object for the 

^ " Whatever power is deposited with the Union hy the people for 
their own necessary security, is so far a curtailing of the power and 
prerogatives of States. This is, as it were, a self evident proposition : 
at least, it cannot be contested." Chisholm v. Georgia, 468 ; Gushing, 
J. And : " Every state in the Union, in every instance where its sov- 
ereignty has not been delegated to the United States, I consider to be 
as completely sovereign, as the United States are in respect to the 
powers surrendered. The United States are sovereign as to all the 
powers of government actually surrendered : each state in the Union 
is sovereign as to all the poAvers reserved. It must necessarily be so, 
because the United States have no claim to any authority, but such 
as the states have surrendered to them : of course the part not surren- 
dered must remain as it did before." Id. 435, Iredell, J. 



110 THE CONSTITUTION. 

attainment of which they had been parted with ; and, 
to add meaning to this construction, as well as to se- 
cure what had not been parted with, the assertion in 
the Articles of Confederation, that the powers not ex- 
pressly delegated were retained, is repeated in sub- 
stance. No one can view the Constitution of the 
United States, without receiving the impression, that 
it was the work of men whose object was not to claim 
greater liberty than they had all along possessed, but 
to preserve as much of this ancient liberty as they 
coidd ; that it was the work of men in whom tenacity 
of ancient institutions and of ancient individuality 
was the most deeply rooted characteristic belonging to 
them, and that these men strove to create a power 
whose first purpose was to preserve and guarantee the 
undisturbed existence of these institutions and tliis in- 
dividuahty. In maldng the constitution, they never 
lost sight of the real, underlying ground of their war 
for independence ; the fact that their liberties and in- 
stitutions had been lacking in the constitutional guar- 
anty which those of the mother-country had enjoyed 
since the Revolution of 1688, and that it was essential 
to their welfare that they shoidd possess such stable 
safeguards. It was to secure this guaranty ; it was to 
place their liberties on a hke constitutional foundation 
with those of Great Britain, that was the main object 
of the war which had been lately fought. In the crea- 
tion of a central power, then, that was to take the 
place of the old one, of which the king had been the 
exponent, the uppermost thought was, first, to establish 
this guaranty beyond peradventure, and, secondly, to 
retain, as far as possible, the same benign and mild 
features which had characterized the displaced govern- 



THE AMENDMENTS. Ill 

ment. The outcry raised at the omission of a Decla- 
ration of Eights ^ was so speedily followed by the 
amendments embodying the provisions, that they have 
been regarded in the common view as parts of the 
original instrument, and the objection thus made, 
indicates how important the people considered the 
expression of such guaranty. To reconcile the relin- 
quishment of power with the retention of sovereignty, 
limitation of the exercise of powers to the point of 
administrative efficacy, and no further, was the obvious 
course, and this according with the race reluctance to 
part with franchises, was the mode adopted. But, in- 
asmuch as the abolition of monarchical rule left the 
colonial governments such as they really ever had 
been, republics, the republican principle prevailed 
against that of substituting one king for another, and 
a republican form of government was adopted. Apart 
from this there was no change. The colonial govern- 
ments had been pure exponents of anglican liberty ; 
pure exponents of anglican liberty they remained 
when they became states, and such they exist to-day. 

^ "The most considerable of the remaining objections is, that the 
plan of the convention contains no bill of rights. ... I answer, that 
the constitution offered by the convention contains a number of such 
provisions : " and refers to Art. I, section 3, clause 7 ; id., section 9, 
clause 2 ; id., clause 3 ; id., id., clause 7 ; Art. Ill, section 2, clause 3 ; 
id., section 3 ; id., id., clause 3 : " I go further, and affirm, that bills of 
rights, in the sense and to the extent they are contended for, are not 
only unnecessary in the proposed constitution, but would even be 
dangerous. They would contain various exceptions to powers not 
granted ; and on this very account, would afford a colorable pretext 
to claim more than were granted." The Federalist, LXXXIV (Ham- 
ilton). "The truth is, that the constitution is itself, in every rational 
sense, and to every useful purpose, a Bill of Rights." Id. For Mad- 
ison's view of this particular omission, and of Declarations or Bills of 
Rights in general, see his letter to Jefferson, Oct. 17, 1788. And see 
Lee's reasons, Elliot's Deb. iii, 186 ; and others, id., sparsim. 



112 THE CONSTITUTION. 

Tlie achievement of independence did not alter one jot 
or tittle of their character in this respect. In these 
governments the world had beheld the natural, the 
instinctive development of race notions of personal 
liberty and of government under novel conditions. 
The adoption of the federal constitution, far from 
changing or affecting their character, expressly giiar- 
antees the integrity of these governments. In respect 
to the local governments, then, the federal constitution 
found them anglo-american,left them anglo-american, 
and guarantees, that anglo-american, they, and all 
they represent, shall remain. 

A character has sometimes been attributed to the 
makers of this constitution which is not sustained by 
theu' work ; the character of those whose boldness 
and audacity have been crowned with success. No- 
thing is farther from the truth : they did not meet to 
air new doctrines, but to embalm the old ; ^ they were 
cautious to timidity about anything which savored of 
the novel in governmental principle, and their stormy 
episodes arose only with the suspicion, that, what was 
known and settled was not finding its clear and mi- 
mistakable expression, that old rights were not having 
their due, or that too much was required of their local 
self-government. To restrict, not to exjjand ; to bind, 
not to dissolve, was the work in hand, and there exists 
not a crumb of comfort, within the four corners of the 
federal Constitution, for the restless, vague democracy 
whose end seems to be the subversion of that which is. 
The democracy which appears, was the representative 
democracy of which first the colonial and afterwards 

^ In fact, the Constitution of the United States has proved a success- 
ful attempt to set government to ancient landmarks. 



RECOGNITION OF DEMOCRACY. 113 

the state governments were and have smce remained 
such striking examples, and of which, from their na- 
ture as immediate exponents of the different peoples, 
they must be the principal conservators : all that the 
federal Constitution did, was to recognize such demo- 
cracy, and to abide by it. What representative gov- 
ernment owes to America, it owes more to the thirteen 
colonies than to the United States. In short, the fed- 
eral Constitution recognizes a preexisting condition of 
representative democracy animate in thirteen states, 
and conforms itself to its laws as the creature na- 
turally subjects itself to its creator : it expresses this 
principle in every paragraph,^ not as a dogma, but as 
every Hving organism expresses the real, the very 
principle of its being. The word " democracy " does 
not occur in the Constitution, nor does any other word 
indicative of political principle, unless it be the word 
" republican " which is here expressive rather of the 
form than the principle of government. What it as- 
serts, nevertheless, is, that the sovereignty resides in 
the people, that the states are distinct and separate 
autonomies,^ and that it, itself, is the work of their 
hands. 

^ Even in the provision for the election of President and Vice-Presi- 
dent. 

■^ " There is no doubt that the several states of the United States are 
foreign to each other ; for, though in the aggregate they form a con- 
federated government, yet the several states retain (theoretically), sic, 
their individual sovereignties, and, with respect to their municipal 
regulations, are foreign to each other." Note to Buckner v. Finley et 
al., 2 Pet. 586, revised ed., citing Warder v. Arrell, 2 Wash. (Va.) 298 ; 
Brown v. Ferguson, 4 Leigh, 37 ; Lonsdale v. Brown, 4 Wash. C C. 
80, 153 ; 2 Pet. 688 ; Chenowith w. Chamberlin, 6 B. Mon. 60 ; Duncan 
V. Course, 3 Const. R. (So. Car.) 100 ; Cape Fear Bank v. Stinemetz, 
1 Hill, 44 ; State Bank v. Hayes, 3 Ind. 400 ; Warren v. Coombs, 20 
Me. 302 ; Daniel Neg. lustr. sec. 9 ; Phoenix Bank v. Hussey, 12 Pick. 



114 THE CONSTITUTION. 

In this Constitution, we find the first appearance of 
union as a dominating j)olitical force in the history 
of the United States ; and its transformation from a 
sentiment into a principle had been radical. First, 
there existed separateness of the colonies ; then, at a 
late period in their annals, and stmiulated by external 
encroachment upon colonial autonomy, arose a senti- 
ment of union, which, however, was effective only in 
ensuring concert of action, not altogether complete ; 
then ensued a further advance towards union under 
the Articles of Confederation, which, nevertheless, did 
not evince anything like complete union, but rather 
that the ancient separateness had yielded to the less 
disjunctive but still intensely individual principle of 
local self-government, and, finally, under the pressure 
of public distress and the inefficacy of a government 
without powers, such as that of the Confederation, we 
see a central authority evoked, which, for the first time 
exhibited a complete political union. The government 
of the United States, as presented by the Constitution, 
displays complete development and individuality of all 
the governmental elements, viz : the executive, legis- 
lative, and judicial, and all these acting in harmony.^ 

483 ; Carter v. Burley, 9 N. H. 558 ; Wells v. Whitehead, 15 Wend. 
527 ; Amner v. Clark, 2 Croinp., M. & R. 468 ; Dickens v. Beal, 10 
Pet. 572 ; Bank of U. S. v. Daniel, 12 Pet. 32. Contra : Miller v. Hack- 
ley, 5 John. 375. The foregoing references, ■which comprise but a 
partial list of the authorities, not only prove the states to be foreign 
to each other, where not declared by the Constitution to be united, 
but prove, likewise, that the several states retain actually, and not 
theoretically only, their individual sovereignties. 

1 " The departments of the government are legislative, executive 
and judicial. They are coordinate in degree to the extent of the 
powers delegated to each of them. Each in the exercise of its powers 
is independent of the others, but all rightfully done by either is bind- 
ing upon the others." Dodge v. Woolsey, 18 Howard, 347 ; Mississippi 
V. Andrew Johnson, 4 Wallace, 500. 



POPULAR DISTRUST. 115 

The approach to complete political union had been 
slow, reluctant, and characterized by caution which 
savored of timidity, and the general joy at its con- 
summation was more expressive of hope than of con- 
fidence. The distress of the country was become in- 
tolerable, and the Constitution had to content itself 
with the reception given to anything which promises 
relief. Though its supporters were sufficiently in the 
majority to secure its adoption, it met with strong o^- 
position. Even of those who had taken part in its 
formation, there were men who put httle faith in their 
work, and who, to say the least, were not satisfied with 
it ; 1 and there were vast numbers throughout the comi- 
try, who saw in it the downfall of their fond a.nd per- 
sistent hopes for the absolute individuality of their 
states. These men had fought in order to render their 
colonies independent of a great power, and to them 
the Constitution tlu-eatened renewed subjection : at 
best it meant surrender, not independence. All dis- 
trusted the giant they had called into being, and eyed 
askance their own progeny. It never gained the full 
confidence of the generation which produced it, and 
thousands of the men who had borne the brunt of the 
war for independence, went down into their graves be- 
lieving that they had left behind them a monster, 
whose avidity would not be satisfied until it had swal- 
lowed up the last right of the states, and had effected 
in itself consolidation of the local governments in the 
l^lace of union.2 It need hardly be said, however, that 

1 Madison Papers, iii, 1593, 1594, 1595, 1600, 1601 ; ii, 1542. 
There can be little doubt that, had there been a second Convention, 
it would have rejected the present constitution. Washing-ton to 
Chas. Carter, Dec. 14, 1787. 

^ For objections to the Constitution, see them collected and com- 



116 THE CONSTITUTION. 

time and experience wrought a change of sentiment. 
The Constitution won its way into the public con- 
fidence as familiarity with its scope and jDrinciples in- 
creased, and as the beneficence of its operation became 
manifest, imtil, at last, this confidence was supple- 
mented by general admiration. Nevertheless, the fears 
of the founders of our government were prudential 
fears, and the possibility of centralization of power, at 
the expense of local self-government still remains the 
chief source of apprehension to the lover of angiican 
liberty. 

The characteristics of colonial separateness and 
local self-government have been dwelt upon at length, 
because, without thorough understanding of these 
primitive and radical elements of our constitutional 
existence it is impossible to comprehend or to account 
for the events that flowed from them, or for the growth 
of the union of wliich they were the forerunners. 
The sources of all political events are to be found in 
constitutional principles, and if we are to account for 
union, disunion, or reconstruction, we must seek their 
causes in the underlying principles most likely to pro- 
duce them. It is natural, then, that we should study 
the governing principles of our ancestors in the days 
of their simplicity, and turn our eyes upon their first 
essays at constitution-making until we come to the 
Constitutional Convention of 1787 and its final result, 
the Constitution under which we now live. For, cer- 
tainly, if the determining forces of the Constitution 
are to be found anywhere, they are to be discovered in 

meiited upon in Story's Constitution, Book III, chap, ii ; The Fed- 
eralist, XXXVIII (Madison). 



COMPLETION OF THE REVOLUTION. 117 

the deliberations and utterances of a body called to- 
gether for the express purpose of discussing and 
enunciating constitutional principles. The Conven- 
tion of 1787 presents the desired opportunity in a 
peculiarly favorable aspect, not only from the remark- 
able ability and character of the men who composed 
it, but from the circumstances which called it into 
being. It completed the Revolution ; its purpose was 
to hand down the gains of this historical event, and to 
embody in the clauses of the Constitution the results 
of the pohtical upheaval then terminated, and these 
results were comprehended in the Union of the States, 
Henceforth the people of these states were to refer 
their political events to this Revolution, because with- 
out it they would not be what they are, and therefore 
everything occurring since that event, has reference to 
the charter which summarizes and directs the political 
forces defined within its corners. 

There are several features of the Constitution of 
1788, which bear so forcibly upon the Civil War and 
its results, that specific mention must be made of 
them. 

We have seen the condition of colonial separate- 
ness give way to the " federal " principle of the states. 
This principle was manifested in the Articles of Con- 
federation, which set forth a compact between sov- 
ereign states only, and this constitution, like every 
compact between equals who are without appeal to 
a higher power, rested solely on the good faith of the 
parties ; no compulsory power save that of war, could 
be invoked against dehnquents. There was no pojD- 
idar representation, for there was no people ; nor were 



Co-A 



a.\^s:.^ (.c W.f c^d^ 



118 THE CONSTITUTION. 

there any means by which the general body could act 
upon individual citizens. There was, consequently, 
nothing " national " about this government, nor any- 
thing which embodied the power of the combined and 
united peoples in respect to the general purposes tliis 
government was intended to eifect. 

When the Confederation had had its day, the prin- 
ciple of " federalism " was compelled to accept a yoke- 
fellow, and it had to act henceforth in conjunction with 
the principle of " popular representation." There 
was a conjunction in the same frame of government of 
the federal principle and of the national principle, and 
these two principles were intended to work for the 
same end — the good of the whole and the good of 
all. It is the conjunction of the several states under 
these conjoined principles which forms the Federal 
Union. The term " federal " applies to the conjunc- 
tion of the state sovereignties, and the term " Union " 
applies to the conjunction of the peoples ; and in an 
ethical view, the states convey the notion of natural 
growth and the federal government that of fahrica- 
tion. Thus the features of the Union were, that the 
parties to it were not only sovereign states and gov- 
ernments, but also that the peoples were represented 
in the general government by citizens of their respec- 
tive states, chosen by themselves at the polls, and that 
these respective states had representation by citizens 
chosen by the legislatures of the several states. This 
representation of the peoples was proj)ortionate in the 
House, and thus the number of representatives varied 
with the populations, while the representation of the 
states in the Senate, being founded upon the equality 
of the sovereignties, was fixed and immutable ; each 



FEDERATION AND NATIONALITY. 119 

state having no more nor less than two senators. 
Therefore, while the federal principle held its own in 
the Senate, as an indispensable principle of govern- 
ment, popular representation, the antithesis of federal- 
ism, held sway in the House of Representatives, and 
the general legislature embraced the two elements of 
states and peoples. 

From the adoption of the Constitution to this day, 
the equipoise of these principles has been regarded as 
constituting the liighest condition of safety for the 
government, and it was the irrepressible conflict be- 
tween these principles that brought on the Civil War 
between the states. 

The questions, what constituted an equitable ratio 
of suffrage, and how should representation be appor- 
tioned, were embarrassing ones, and they engrossed 
much of the time of the Convention. The contest be- 
tween property and persons, between values and num- 
bers, waxed warm : but whether slaves were to be con- 
sidered property or persons, it was conceded, that 
this general element was to be represented in Con- 
gress. The efforts of the Convention became concen- 
trated upon a combination of nvmibers and wealth as a 
basis of representation — "an expedient to prevent the 
balance of power from passing to the western from 
the Atlantic states." ^ The objections to 'this, on the 
part of the great slave-holding states, were, that " it 
left the qviestion wholly midetermined whether the 
slaves were to be regarded as persons or as j)roperty, 
and therefore left that question to be settled by the 
legislature at every revision of the system. More- 
over, although tliis rule might enable the Atlantic 
1 Curtis, i, 409. 



120 THE CONSTITUTION. 

states to retain the predominating influence in the 
government against the western interests, it might also 
enable the northern to retain the control as against 
the southern states, after the former had lost and the 
latter had gained a majority of population." ^ Thus 
the South, from Maryland to Georgia, would he in a 
minority from the outset, and in a minority whose in- 
fluence would become less and less with each recurrino; 
census. 

The Convention was forced eventually to abandon 
the task of combining wealth and numbers in a basis 
for representation tfiid taxation ; the South insisting 
that their slaves should be regarded as persons, and 
the North contending that they should be regarded as 
property. A compromise was at last effected on the 
principle of assuming, that representation should be 
proportioned to direct taxation ; that an actual enum- 
eration of the free inhabitants and three-fifths of all 
other persons (excluding Lidians not taxed) should be 
periodically made, and that direct taxes should be ap- 
portioned among the several states, according to their 
respective numbers so ascertained.^ All the southern 
states, except South Carolina, voted for this basis of 
taxation and of the House of Representatives. 

It was not the first time that this question had 
come before the country. In 1776 it was discussed 
in relation to the quotas of contribution prescribed in 
the Articles of Confederation, and in that instance, 
the North insisted, as it did in this one, that slaves 
should not be a subject of federal taxation ; a position 
which was resisted by the South, on the ground that 
this left the North to be taxed on numbers only, while 

1 Id. : id. 2 Article i, sec. 2. 



REPRESENTATION OF SLAVES. 121 

the South would be taxed on numbers and wealth con- 
jointly, inasmuch as slaves were proj)erty as well as 
persons. The inability to come to a satisfactory ad- 
justment, drove the Congress of 1776 to adopt land as 
a measure of wealth — a measure which was fomid to 
be impracticable, and in 1783 Congress reverted to the 
basis of numbers, and it was then that the proportion 
of tln-ee-fifths was established for the slave population.^ 

Thus, the very first efforts of the newly-born states 
to unite, were met by the question : What is to be 
done with the slave? It is true, that what is now 
known as " the slavery question " 'did not then appear, 
for the question, What shall be done with the slave ? 
was general, not sectional (slavery then prevailing 
throughout the country), and it was purely political, 
for it related to representation and taxation only, the 
ethics of the question having no place in a contest in 
which each side was striving in order that it shoidd 
not be overreached by the other. Nevertheless, this 
question was full of gravity, and no one can peruse 
the remarks of Randolph and of Mason in the Con- 
vention without seeing how alive Virginia was to its 
bearings on her future. It is apparent that, even 
then, the South regarded the North as the growing 
section of the country ; that she looked upon herself 
as destined to be passed in the race, and that she was 
then concerned more about guarantees for the future, 
than about the gains of the present. 

This basis of popidar representation and of taxa- 
tion was a compromise between the North and the 
South, and this equality of state representation and 

1 Curtis, 415; Madison's notes, Elliot, v, 78-80, 81, 82; Journals 
of Congress, viii, 188. 



122 THE CONSTITUTION. 

vote in the Senate, was a compromise between the 
small and the great states and between the national 
and federal parties in the Convention. The latter 
compromise has been styled " the great Compromise." 
The Constitution itself has been considered as a com- 
promise between sections and interests, and indeed 
the spirit of compromise throughout it is evident. 
Concession had to be made on all sides and by all 
parties before it was reduced to its present form. 

There is a word in the Constitution of 1788 which 
is not to be found in the Articles of Confederation ; it 
is the word " repubhcan," and it occurs in Article IV, 
section 4, where it is said that, " the United States 
shall guarantee to every state in this Union a repub- 
lican form of government." What was the notion of 
a republican form of government entertained by the 
makers of the Constitution ? The answer is, that, in 
reference to the Constitution solely, it was the form of 
government then prevailing in the thirteen states : 
that is to say, a government consisting of an execu- 
tive, a representative-legislative, and a judicial branch, 
each distinct from the other branches, and one, the 
judicial, indej)endent of them : and a government 
which rested upon the principle, that it derived its 
powers from the governed, and that the sovereignty 
lay in the people of the state, or in the words of 
James Wilson, that the supreme, absolute, and uncon- 
trollable authority remains in the people.^ Such were 

^ Wilson before the Ratification Convention of Pennsylvania, 1787. 
He says further: "His (Mr. Fincllay's) position is, that the supreme 
power resides in the states as governments ; and mine is, that it re- 
sides in the people as the fountain of g-overnment ; that the people 
have not — that the people meant not — and that the people ought 
not, to part with it to any government whatsoever." — Elliot's De- 
bates, II, 418, et seq. 



REPUBLICAN FORM GUARANTEED. 123 

the forms and principles of the governments of the 
states that met in Convention, and of the two states, 
Rhode Island and North Carolina, which afterwards 
joined the makers of the Constitution in their adop- 
tion of tliis instrument. They were popidar, repre- 
sentative, and defined governments acting as agents 
and representatives of the body of the people to whom 
they were strictly accoimtable. 

That these existing forms were the only ones in 
contemplation of the Convention, is showTi by the de- 
bates, the correspondence of the members, the essays of 
the Federalist, and the journals of the day, and by the 
requirements of the Constitution itseK ; for the frame 
of the general government was such as was adapted 
only to the particular governments that embodied 
such forms and such principles, and the object of this 
clause was to prevent the admission to the Union of 
any government not in harmony with the existing con- 
stituents, and to maintain by the combined forces of 
these constituents, the integrity and stability of each 
of the existing governments. It need hardly be said, 
that future accessions to the Union were required to 
accept this clause, and that the government of the 
United States, like the governments of its constitu- 
ents, was a republican form of government. 

It will not fail to be observed, that the requisite 
went no farther than the form of government ; all 
that was required was, that the government should be 
" republican " in form. This left everything else to 
the pleasure of the state, and the. Union took no ac- 
count of its domestic institutions. It might have a 
Senate, the terms of whose members were for one year 
or for life ; its electoral vote for President might be 



124 THE CONSTITUTION. 

cast by the legislatures or through electors chosen by 
the people at large or in districts ; it might impose a 
property qualification for the exercise of the voting 
franchise, or suffrage might be free ; it might main- 
tain or abolish slavery, which was then general ; in a 
word, it might govern itself as it pleased, so long as 
its form of government complied with the Constitu- 
tion : when this was done, the United States guar- 
anteed the maintenance of this form, and protection 
against foreign and domestic violence. 

The action of the United States is limited to a guar- 
antee of this form of government : this form therefore 
is a prerequisite without which there can be no action 
of the government. Nor can the United States com- 
pel a people to accept such a form, nor bestow it upon 
them ; much less can they abolish or even alter such 
a form, for a guarantee implies maintenance of existing 
conditions. The people of a state may change or alter 
its constitution at pleasure, but so long as it preserves 
a republican form of government and remains a mem- 
ber of the Union, the United States are bound to rec- 
ognize this form and to maintain it against the world. 



CHAPTER VII. 

THE FORMATION OF PARTIES. 

The evolution of parties in free governments — The colonial epoch, 
the brooding epoch ; fondness of colonists for politics, and practical 
part universally taken by them in governing — No general parties 
during colonial period — Pai-ties generated during the revolutionary 
epoch — Change of colonial character — Constituents of the Feder- 
alists. 

Although parties appeared so abruptly upon the 
field after the adoption of the Constitution of 1788, 
as to convey the unpression that they owed their exis- 
tence to circumstance merely, such was not the case. 
They were the outcome of time, and they owed to cir- 
cumstance the acknowledgment which is due to op- 
portunity only. They did not appear unheralded, nor 
had they failed to pass through the regular stages of 
development : but the final stage of their generation 
was accomplished so speedily, and their organization 
was effected so rapidly, that before Washington's first 
term had ended, they were confronting each other in 
fuU vigor. They exhibited the earnestness that is to 
be attributed to the advocacy of principles which have 
been handed down from father to son, and they were 
manifesting the skill which springs ordinarily from 
protracted and thorough discipline alone. The princi- 
ples which actuated these parties, had been inherited by 
one generation from another from the remote period 
which had beheld the rise of anglican liberty ; but the 
skm was aU their own. 



126 THE FORMATION OF PARTIES. 

Knowledge of tlie formation of parties in tlie Uni- 
ted States is essential to a right understanding of our 
constitutional history. We seek in vain to know tlie 
nature of anything political in a people, unless we can 
refer it to the character impressed upon their politics 
from the beginning. The characters of states are 
born with them ; their politics are expressions and 
exponents of these characters, and as ifi representative 
governments especially, everything, sooner or later, 
speaks through or is reflected by the government, 
politics comprehend the historical motives and acts of 
the people. There is nothing more certain in the his- 
tory of representative governments, than that every 
political event is to be explained by the constitutional 
character of the people, and it is equally certain that 
this constitutional character is best ascertained at the 
period of its inception. It is when a people chooses a 
form of government and creates a system by which its 
public affairs are to be administered, that it discloses 
its true nature most simply ; it is really making choice 
of the best mode of living, and in doing so it acts nat- 
urally. We must revert, then, to the events and to 
the principles which actuated it at the period of its 
formation, in order to determine its constitutional 
being. When such a peoj)le reaches the point of 
actually writing out in fixed phrase the conditions and 
principles of its political life, the moment of its doing 
so is the only one when the circumstances and condi- 
tions existed which produced this authoritative expres- 
sion. The rule holds good, even though the constitu- 
tion be the original and single act of one people : but 
where it is a compact between peoples, the rule is all 
the more applicable, inasmuch as the intention, which 



PARTIES ARE EXPOSITORS OF PRINCIPLES. 127 

is the binding force of all contracts, can be ascertained 
only at the moment of institution. 

Among- representative governments, the present 
stage of growth and development of a people's char- 
acter relates back to the latest revolution, be this rev- 
olution violent and sudden, or peaceful and of the 
operation of time. The peoples under such govern- 
ments afford ample facilities for ascertaming their 
motives of constitution, by reason of their free speech. 
Hardly is their legislature organized, when two schools 
differing in their notions of the nature of government 
and the manner of administering public affairs, reveal 
themselves, and these soon develop into tw^o great 
parties which henceforth wage an incessant contest for 
the possession of the government. These parties are 
not only the agents whereby the opposing sets of ideas 
assert their claims to supremacy, but they are the con- 
stant expositors of these ideas and principles, and thus 
become the natural exponents of the governing ideas 
and of the political nature of a people. The history 
of parties, therefore, in free governments, may be said 
to constitute the political history of the people to 
whom they belong, and, as has been observed of con- 
stitutions and of political compacts, the principles act- 
uating these parties are to be foimd most distinctly 
expressed at their formation. No matter how imme- 
diate and direct their action of to-day may be ; no 
matter how temporary and fleeting their action of the 
moment or how apparently inconsistent their course, 
the fundamental principle of their action is to be found 
in their notions of the nature of government in gen- 
eral, of the nature of the government mider which 
they are acting and of the mode of administering this 



128 THE FORMATION OF PARTIES. 

government ; and these notions, as we have seen, are 
expressed or miplied in the written constitntion, or, at 
least, asserted to reside in it. Parties profess to be 
the interpreters as well as the agents of the constitu- 
tion ; they become, in consequence, the active, practi- 
cal exponents of the principles of government and of 
administration entertained by a people, and as to a 
just knowledge of tliis people's political character, we 
must seek the earliest expressions of it, so too, we 
must go back to the formation of parties in order to 
ascertain the true character of the principles they 
enunciate and to comprehend even the latest events 
which have marked their ceaseless strife. 

The necessity of such a course in everything relat- 
ing to the domestic politics of the United States, is 
peculiarly great. The government of our country, 
has a legislature composed of two houses, one of which 
represents the states and the other the people, and the 
spirit which has animated our countrymen from the 
beginning of their constitutional liistory, has been 
that of democracy, and therefore the government 
should be deemed a representative-democratic govern- 
ment. In its form of federation it was novel, and it 
becomes essential, therefore, to a proper comjsrehen- 
sion of it, to betake ourselves to the times when it was 
inaugurated and to the men by whom it was produced, 
and whose conflicting notions of the nature of govern- 
ment and mode of administration mipressed upon our 
politics the two great classes of principles wliich still 
contend for mastery. 

The colonial epoch was the deliberative, the rumina- 
tive, the generative epoch of American life : it was 



THE BROODING PERIOD. 129 

the brooding period of our politics. The most amaz- 
ing thing that caught the eye of Chatham during the 
Revokitionary period, was the mastery of governmen- 
tal principles displayed in the provincial legislatures : 
the most significant thing to the eye of the politician 
m looking back upon the Constitutional period, is the 
appearance of the great parties at the outset. Both 
facts are the products of the brooding, creative period 
of colonial life, but the immediate origin of these 
parties is to be found in the active and revolutionary 
times which followed the Stamp Act. Colonial life 
previous to the Revolutionary period, was peculiarly 
favorable to the race predilection for the contempla- 
tion and study of everything relating to the subject of 
government. Never since the days of the ancient 
Romans, has there been a people so devoted to this 
study as the English have been, and it is significant 
that disquisitions concerning government have ap- 
peared most, and this subject has been pursued with 
greatest activity, durmg the seasons of internal tran- 
quillity, when there has been no exciting cause to pro- 
voke their appearance. Whenever the kingdom has 
been convulsed by civil discord, the parliamentary 
debates and speeches of popular orators and the ephem- 
eral writings of the day have exhibited such readi- 
ness and such comprehension of the subject as can be 
accounted for only by the fact that protracted and 
deep reflection had preceded utterance. The men 
were ready for the event before it happened. So with 
the Americans ; offshoots of British stock, they dis- 
played the same characteristic. The nature of gov- 
ernment, whence it came, what it was, and what its 
end, such was the subject of their speculation. Their 



130 THE FORMATION OF PARTIES. 

philosophical inquiries bore ultimately upon the politi- 
cal relations of man, and in this they followed the 
English philosophers : not that they blindly accepted 
either their jjhilosophy or their notions of government 
(for, as will be seen, there was throughout the country 
a deep and widespread contrariety to accepted notions), 
but that, like them, their disposition was to apply philo- 
sophical methods to political inquiry and to make the 
nature of government the subject of philosophical re- 
flection. In no country of the world were works upon 
this subject, specidative or practical, and from Aris- 
totle to Locke, more closely read than in these colo- 
nies. Montesquieu was generally known, possibly 
more so than in France, and certainly, in proportion 
to his readers, this publicist was more discussed 
throughout the colonies than he was in any other 
country. A rage for discussion and debate respecting 
the nature of things, and particularly the nature of 
the citizen and what his relations to his fellows and 
liis superiors were, possessed the land. When we 
take up the biographies of the leading men of our 
Revolution, we are struck with the universal dispo- 
sition of the law students during the middle of the 
eighteenth century to debate abstract questions relat- 
ing to government, and to discuss with gravity and 
earnestness the abstruse propositions set forth by po- 
litical history. It was the custom, too, in the south, 
for the young planters to do the same thing, long 
before Blackstone advised the youthful aristocrats of 
Great Britain to pave their way to the hereditary ad- 
ministration of their country's affairs by reading its 
laws, and hundreds studied law, not to practice it, but 
for the sole purpose of enlarging the knowledge that 



FONDNESS FOR ABSTRACT POLITICS. 131 

is essential to the art of governing well. Thus 
throughout the land, those who were to have a hand 
in its government, fitted themselves especially for the 
task. The higher courts invariably contained num- 
bers of men to whom political history and constitu- 
tional law were familiar. These facts explain the 
eager interest and general intelligence shown in the 
questions which arose respecting the Writs of Assist- 
ance. All over the land, north and south, the people 
seemed to be ahve to the subject and to clearly compre- 
hend the questions involved and how they affected 
personal lights ; and this accounts, too, at a later pe- 
riod, for the flood of disquisitions concerning the re- 
lations of the colonies to Parliament and kindred 
subjects. Many of these productions, even at this 
day, excite interest independent of the circumstances 
which called them forth, and are still worthy of the 
earnest study of the publicist. Thus the colonies 
were rich in men who had read much, and who had 
reflected deeply upon the nature of government, upon 
its different forms, and upon its relations to society as 
set forth by political history. The land had its 
prophets. 

If such were the favorable disposition of colonial 
life to speculative and theoretical knowledge of what 
constituted the state, equally conducive was it to fa- 
miliarity with the practical workings of administration. 
Parliamentary government was much the same every- 
where throughout the English-speaking dominions ; the 
legislatures usually took the form of two chambers, 
though even were there but one, the procedure was 
subject to the same principles and to the same rules 
as was that of the British Parliament. This may be 



132 THE FORMATION OF PARTIES. 

said also of the executive administration by the Gov- 
ernor and his coimselors ; they represented the King 
and his cabinet, and government was acbninistered 
upon the same principles in the smallest dependency 
as in the greatest, or indeed as it was administered at 
Westminster. Service in the legislature was not 
shunned, but was accepted from a sense of the duty 
owed by the citizen to the commonwealth as well as 
from motives of ambition. The consequence was, 
that, during a lifetime, there were few men of ability 
and integi'ity who had not filled office of some kind, 
while at all times there were young men awaiting im- 
patiently their turn at the task of governing. Every 
man took his trick at the wheel. There were thirteen 
governments on this coast with their Councils and 
Houses of Assembly to a number of white male adults 
wliich never equalled 500,000, or the population of a 
first class American city of to-day. The number of 
men, therefore, who were acquainted with the practical 
workings of administration and legislation, must have 
been greater in proportion than that which existed 
among any other people at or since that t!me : the art 
of administration was brought to one's door, and it is 
no wonder that visitors to these shores carried away 
the impression, that every American of respectability 
was a working politician, nor that the world was sur- 
prised at the general familiarity with politics. 

It is clear from this brief description of the contem- 
plative life of the colonist, and of his activ^e life in 
practically administering public affairs, that his race 
predilections for the science and art of government 
found in this remote quarter of the globe no mean 
theatre of action. In truth, the colonies afforded as 



NO GENERAL PARTIES IN COLONIES. 133 

ready and as good schools of representative govern- 
ment as ever were known. 

During the colonial period, there had been no gen- 
eral parties whatever ; for there was nothing to call 
them into existence, nor was there any ground for 
them to act upon. There could be no question affect- 
ing the colonists as one people, for they were not one 
people ; and, as there was no union of the colonies, 
the crown dealt with every one singly and exclusively. 
What party spirit there might be, concerned itself 
with the merest of domestic details, and was confined 
rigidly within the limits of each colony, and being re- 
stricted to the subjects presented by the narrow and 
dull routine of local administration, it had no oppor- 
tunity to expand. It is true, that throughout the 
colonies men classed themselves as Whigs or Tories ; 
but these terms had little significance beyond express- 
ing the sympathies of the colonist with one or other of 
the parties of Great Britain, though sometimes they 
were adopted in order to distinguish different local 
opinions. During the Revolutionary period, the terms 
" Whig " and " Tory " gradually assumed a general 
character in this respect, that the latter meant one 
who took the Parliamentary view of the relations of 
the colonies to the British Parhament and the former 
meant one who denied the omnipotence of this Parli- 
ament in the colonies. At last, when arms had been 
taken up, " Whig " applied to a colonist of American 
principles and " Tory " to one of British principles : 
one was " patriot " and the other was " loyalist," but 
these were to be found in opposing camps, not on the 
opposite sides of a legislative chamber. Had there 



134 THE FORMATION OF PARTIES. 

been such an institution as a general colonial legisla- 
ture, previous to the Revolution, doubtless there would 
have been two great parties : but while it is apparent 
that the elements for parties existed, and that the 
unsettled colonial relations to the British government 
alone would have afforded subjects for opposition, it 
is nevertheless clear that, as things were, we cannot 
speak of general parties in the colonies ^vith anything 
like precision or truth. The " Government party " 
meant the " ins," and the opposition in each province, 
whatever name it assumed, meant merely the " outs." 
The necessity of concert of action repressed the for- 
mation of parties among the Americans during the 
times of agitation and conflict. Factions there were 
in plenty, and we observe the rise of conflicting 
notions particularly after the emigration of the loyal- 
ists had left the field clear ; but there was no organi- 
zation of parties. Nevertheless, it was during this 
Revolutionary period, that is to say, between 1760 
and the adoption of our present constitution, that the 
great parties were generated. In 1765 the yoimg 
men of that day were entering upon times to which 
no other period in our liistory affords a parallel. The 
pecidiarity which distinguishes this epoch from the 
others in our annals, is, that it was conspicuously one 
of constitutional and political development, or, to speak 
more accurately, it was the period when the constitu- 
tional growth and expansion of the British colonies 
upon the American continent, having completed the 
work of adapting ancient principles to novel condi- 
tions, reached the stage where the state was to cast 
aside dependence for independence, and the citizen 
was to consummate his assertion of individuality in mat- 



EFFECTS OF REVOLUTIONS. 135 

ters of government. As far as constitutional govern- 
ment is concerned, the experience of the British people 
in the XVIIth century is like that of the Ameri- 
cans during their Revolutionary period : it encoun- 
tered those political conditions where action takes the 
place of inquiry, and where the long-generating ab- 
straction parts from its progeny of aggressive princi- 
ples which assert their right to action and hew their 
way remorselessly to control. Here, as there, one 
result of revolutions, and perhaps the most benefi- 
cent result, was the production of great parties ; those 
popular organizations whereby fixed but clashing prin- 
ciples of government impress themselves upon admin- 
istration and legislation, to the control and regulation 
of both. Revolutionary periods form the startling 
chapters in a people's history ; but when the end of 
the story is reached, the most impressive thing about 
them is not the succession of events, the popular tur- 
bulence, men quaking with fear, or even the pictur- 
esque and lively movement of the physical strife in 
which they terminate, but it is the changed character 
of the people themselves. These people are the same, 
yet not the same : their character appears in alto- 
gether another light ; new objects are set for their 
attainment, and motives different from those of old 
inspire their action. 

For example, he who takes up the history of the 
Revolution of 1688 immediately after laying down the 
history of Elizabeth's reign, cannot fail to be struck 
with the wondrous change in character which had 
come over the English. The fixed and constant qual- 
ities of the people, it is true, are the same, but their 
ways of acting, their motives, their political principles, 



136 THE FORMATION OF PARTIES. 

tlieir spirit, are altogether different. The tranquil 
lapse of time does not account fully for the change 
which has been going on during the period of turbu- 
lence and revolution set down in the annals. These 
annals do not equivocate, and they disclose, that the 
people had been repeating the old and endless question. 
Who are we, where are we, and whither are we going ? 
as they never before had done, and that the attempt 
to settle these, as far as politics was concerned, had 
been accompanied by convulsion which had ended in 
society taking uj)on itself a character it never before 
had borne. So, too, the contrast presented by the 
eager, restless, but determined Americans of 1789 
with the passive, contented, and drowsy colonies of 
1750. Like the English of the preceding century, the 
Americans had been passing through a formative pe- 
riod, and had been brought face to face with first 
principles. They, likewise, had been inquiring into 
the nature of things, and the questions which had con- 
cerned them were. What is the citizen, and what his 
rights and duties ? What is government ; whence 
did it emanate ; what its end ; and what the constant 
relations existing between it and the people ? What 
constitutes the people, and wherein lies sovereignty ? 
Such were the impulses, which, when inquiry gave way 
to action, and this in turn pursued its course to social 
convulsion, modified popular character. The young 
men of 1765, then, found themselves confronted at 
the outset of their careers, with novel conditions 
which provoked the inquiry that went to the root of 
their nature as men and as subjects. The war for 
independence absolved them from the sense of depen- 
dence upon a superior power : they could, therefore, 



FIRST PRINCIPLES. 137 

look upon their government from a single standpoint. 
The attainment of independence carried them still fur- 
ther, and, forcing upon them the creation of a cen- 
tral government, brought them to the direct consider- 
ation not only of what government was and what it 
shoidd be, but, above all, what it was in the power of 
man to make it. The nature of things, the knowledge 
of the nature of things, and how to use such know- 
ledge for the good of mankind, this it was which had 
troubled the days and nights of their youtliful man- 
hood ; and it was this inquiry applied to the experience 
afforded them by their own colonial governments, 
which produced the spectacle of a roomfvd of lawyers 
and planters giving to their people a constitution, 
which the world has treated since then as if it were a 
discovery. 

The Articles of Confederation are not of themselves 
evidence that parties existed at the time they were 
framed. This instrument was not the outcome of 
party contention or party compromise ; it is indicative 
merely of the necessity for combination, military and 
political, then pressing, and of the intentions of its 
makers. These Articles were not adopted until 1781, 
and as they were superseded in 1788 by the present 
constitution, they had an existence of barely seven 
years. Peace was declared in 1783, and the work of 
rehabilitation became the need of the moment : divers 
measures to tliis end were accordingly brought for- 
ward, and every scheme had its advocates who urged 
its adoption as interest or sentiment dictated. During 
the Confederation the instances of counteraction had 
become more and more numerous and significant, and 
two classes or schools of politicians had begun to 



138 THE FORMATION OF PARTIES. 

assert themselves ; those who at any cost would keep 
the states strong- and the agent weak, and those who 
would have the agent transformed into an authorita- 
tive power. The element of union, imperfect though 
it was, gave rise to a class of men who desired greater 
union and this class acquired importance with the 
growing necessities and aspirations of the new republic. 
These men saw clearly, that the states under the Con- 
federation could not maintain the same security from 
external foes as they had enjoyed when they had been 
colonies under the protection of the greatest maritime 
power in the world, and that, though their remoteness 
was in itself protection of a high order, they were now 
very badly off vipon the high seas. They would have 
to take care of themselves ; but if they were to influ- 
ence or command the respect of the great powers, they 
must be able to exert the force of a great power, and 
to accomplish this there was nothing to do but to be- 
come one. To stand before the world as a great power, 
and to take a position in the family of nations, was a 
natural sequence of independence, but in the existing 
undeveloped condition of the states such a thing was 
impossible. Again, under the policy of colonial ad- 
ministration, the colonies had been restrained from 
becoming manufacturing communities, yet to become 
such was the dream of the extreme northern section ; 
but this was out of the question so long as a portion 
of the country refused to shut its ports against foreign 
manufactures, and a central power strong enough to 
compel uniformity seemed to be a proper result of 
combination to these men, and therefore they advo- 
cated closer union of the states. 

There was nothing, in fact, to indicate permanent 



PARTIES GENERATED IN THE STATES. 139 

organization of the different groups ; tliey were not 
united by any general and common principle, and the 
object sought by most of them was temporary and ma- 
terial. There was no leadership, and thus, without 
general principles, without binding organization, and 
without guidance or control, they constituted factions 
rather than parties. It is significant of the lack of 
general parties, that, at this time, when the common 
distress of the country called for the greatest energy 
of Congress, this body dwindled away almost to a 
nullity. Its intellectual character waned with its de- 
clining importance, and it sunk in the esteem of the 
people. During periods when every member shoidd 
have been in his seat, days passed without a quorum. 
It is useless, then, to look for parties in the Congress 
of the United States, at this time. On the other 
hand, if we turn our eyes upon the state legislatures, 
the scene is a different one, and it is apparent that 
the formative process of parties is in full operation. 
It is natural, that the first expressions of political no- 
tions shoidd be found in the assemblies most closely 
connected with the daily lives and thoughts of the citi- 
zens, and such is found to be the case. The local legis- 
latures and the ratifying Conventions were thronged 
and debate was active : there was where the great 
parties generated. 

At the peace of 1783, public sentiment had made 
great advances towards democracy ; still, the different 
parts of the countiy were not abreast of each other. 
Kepublican feeling had had little change to experi- 
ence in Rhode Island and Connecticut, for their char- 
ter governments had been recognitions of the right of 



140 THE FORMATION OF PARTIES. 

self-government, and the governments constituted in 
accordance with them were of a thoroughly popular 
nature. There was no reactionary sentiment of any 
account in either of these states, and, after the emi- 
gration of the loyalists, the same may be said of 
Massachusetts. But, on the other hand, the New 
England states were the commercial states, and here 
was the greatest concentration of society. In New 
York, Pennsylvania, New Jersey, and Maryland, the 
colonial governments had not been of so popular a 
character. In Pennsylvania the government had 
been originally palatine in nature ; powers were 
derived from the crown through the medium of pro- 
prietors, and the overshadowing influence of these 
great landlords had not favored the development of 
popular notions in government. A class of depend- 
ents arose in each, small in number but clothed with 
an officiality which stood between the proprietor and 
the people, and which questioned every effort of the 
latter to acquire power. In New York, the Dutch 
element planted itself upon immovable conservatism, 
and the great landowners were virtually an aristocratic 
class. In Virginia and other southern states, the 
planters of the seaboard constituted a similar class ; 
they were lords of their plantations and slaves, and 
they resisted anything that threatened diminution of 
their importance ; they were conservative in the high- 
est degree. The whole frontier, north and south, was 
republican and democratic. 

The privileged classes which had sprung up during 
the sway of the proprietors and of the royal govern- 
ments were miquestionably weakened by the loyalist 
emigration, but they were, too, the classes which 



CONSTITUENTS OF THE FEDERALISTS. 141 

liad acquired wealth, and this in a new country 
generally takes the form of land. Many of these 
persons who possessed estates of which it was impossi- 
ble to disencumber themselves readily, finding their 
possessions in danger of confiscation, adopted the 
course of standing by their wealth and of keejDiug a 
civil tongue in their heads. Having made this conces- 
sion of principle to thrift, it is not surprising that after 
the adoption of the Constitution, we find them active 
supporters of him who had announced as one of the 
objects which he had set before himself to attain, the 
" restoration of landed property to its due value." 
They therefore furthered Hamilton's financial meas- 
ures with their influence. 

This element which had been disaffected to the 
Revolution, it need hardly be said, was in favor, too, 
of that form of government which most closely re- 
sembled the one from which it had been torn. The 
whilom loyalists were still monarchists at heart, and 
it is not surprising that they shoidd favor anything 
which, it was whispered, promised a return to mon- 
archy. An interpretation of the Constitution, which 
tended to absorption of the rights of the states by the 
general government would have their support, because 
it tended to the erection of a central, powerful author- 
ity from which a step to a throne would be short and 
easy to take. It was, doubtless, this class which was 
most to blame in bringing upon the Federalists the 
odium of having an intention to restore monarchy. 

Another weighty constituent of the Federal party 
was the commercial interest. This existed chiefly 
along the seaboard, and was concentrated in the cities. 
One character which the colonies had borne, had been 



142 THE FORMATION OF PARTIES. 

that of factories for British commerce. Much of the 
capital which had been employed here, had been Brit- 
ish capital, and the connection sustained with Europe 
by our merchants had been connections with British 
houses. No sooner had peace been declared, than 
British commerce sought to regain its American mar- 
ket. To this end goods flowed freely into our re- 
opened ports, and the British Government aided the 
effort of its merchants to recover our trade, by ob- 
structing us in every continental direction to which 
we inclined and by facilitating reinstatement of com- 
mercial connection with Great Britain. But the de- 
pression which followed the peace was attributed in a 
great degree to the impotence of the Confederation, 
and the spread of democratic doctrmes and the pro- 
nounced efforts of the debtor classes to obtain relief 
by summary processes at the expense of their credi- 
tors, alarmed foreign lenders and checked the supply 
of funds. Domestic trade, equally timorous, shared 
the alarm. What was wanted by the commercial 
classes, was a government whose stability would com- 
mend it to the foreign lender. It is obvious, that 
the needs of commerce thus drew to the support of the 
Constitution the whole commercial interest and threw 
its weight in favor of a form of government, which, 
in its division of powers, resembled the British system 
and promised this stability. 

A far different motive enrolled upon the side of the 
Constitution and of the Federalist administration, the 
higher grade of officers in the late revolutionary army. 
Many of these belonged to the wealthy class or had 
bodies of land which tliey hoped would attain great 
value in the course of time. But they were animated 



CONSERVATIVE ELEMENTS 143 

also by motives peculiar to themselves : they had tasted 
the sweets of official and social elevation, and had 
no sympathy with a democracy which threatened to 
do away with distinction. The general officers of 
the late army are consequently to be found promi- 
nent among' the adherents of a constitution which 
insured the stability they desired so greatly, and of an 
administration whose measures were conducive to the 
subordination of society and to the consolidation of 
authority. 

Finally, it must not be forgotten that men born and 
brought up under an anglican government, and one 
wliich was the outgrowth of race instincts and race 
experience, should prefer a form of government which 
resembled the only one of which they had any practi- 
cal knowledge, and which addressed itself to their race 
character. The nearer it came to the old government 
the better, and the Constitution afforded such a gov- 
ernment, inasmuch as it was anglican in nature and 
was free from the features that formerly had become 
obnoxious to the colonists. Those, therefore, who 
saw in a government of distributed powers and of 
powers which checked and balanced each other, the 
safest form which authority coidd take, hastened to 
support the new constitution. Thus the reflective 
men and those particularly whose avocations led them 
to consider, more or less, the nature of government, 
those who having something, deemed the delegation of 
little felt powers a small price to pay for the security 
of their possessions, eagerly gave their adhesion to a 
constitution which promised them this security, and 
they supported an administration which made en- 
hanced value of these possessions a declared object of 



144 THE FORMATION OF PARTIES. 

its policy. The professional classes, consequently, 
were largely represented among the Federalists : but 
the chief support must not be lost sight of, and this 
was the one which came to the Constitution because it 
was significant as a race expression, and because the 
Federalists favored class and the disposition to mate- 
rial aggrandizement. 



CHAPTER VIII. 

THE FOEMATION OF PARTIES CONTINUED. 

Constituents of the Democratic -Republican Party (Anti- Federal- 
ists) — Principles prevalent among the people, especially the agri- 
culturists — Errors of the Federalists — Jefferson and Hamilton — 
The Old School and the New School. 

Such were the personal and political elements of 
the Federalists and such the material motives for sup- 
porting, first the Constitution and afterward the 
Washington Administration. As the measures of the 
Treasury multiphed, divergence of opinion grew, and 
the different social elements arrayed themselves against 
each other. It must be kept in mind, that the two 
great parties had assumed shape in the policy of the 
administration. He who sees in the opposition to the 
measures of the Treasury, opposition to the Constitu- 
tion itself, is wide of the truth. We have already 
seen, that, though the Constitution was not adopted 
by such a concurrence of opinion or with such general 
enthusiasm as to warrant its complete success, the 
general disposition to give it a fair trial, was unmis- 
takable. This disposition must not be confounded with 
sullen acquiescence. It was real and hearty, and that 
it was so, is shown by the rapidity with wliich the 
Constitution grew into favor ; and apart from certain 
localities and interests, there was nothing like hostility 
to it, but merely the prudential doubt which accompa- 



146 THE FORMATION OF PARTIES. 

nies every experiment. It is, then, going altogether 
too far to include opposition to the Constitution itself 
as an element in the composition of the new party. 
Those who had opposed the adoption of the Constitu- 
tion, had been styled anti-Federalists, and as many of 
the new party had been such, this name clung to 
them. That it was a misnomer, however, is shown 
by these facts : 1. That, after the adoption of the 
Constitution, the anti-Federahsts never organized as 
such ; and never re-appeared in any caj)acity as anti- 
Federalists. 2. That the name was soon seen to be 
out of place, and was discarded for others, such as 
Jeffersonians, Republicans, and, at last, Democrats. 
3. That the main cause which brought the new party 
into existence was to establish a construction of the 
Constitution which, it asserted, would give this instru- 
ment its true effect. This it could not do, had it not 
already accepted the Constitution and did it not stand 
pledged to its support. 

The elements, then, which the measures of the 
Treasury drove into opposition to the administration, 
were as follows : — 

1. Those who saw in the federal government a 
power created for the benefit of the states, and which 
stood to them as a creature stands to its creator. 
These were they who believed that the race predilec- 
tion for local self-government was to be fostered at 
the cost, if need be, of everything else, except funda- 
mental rule and order. Indeed, in their eyes, there 
was no social good nor evil that did not flow from 
obeying or opposing the chief of all race instincts. 
Self-government was as great a virtue to them in poli- 
tics as self-control was in ethics, and the right to it 



CONSTITUENTS OF THE ANTI-FEDERALISTS. 147 

was tlie highest of rights. It was the one axioma- 
tic political foundation of the race. Argument there 
might be, concerning this or that element of govern- 
ment, of this or that political force ; but the founda- 
tion of free government was beyond doubt or ques- 
tion — it was the inviolability of the governments 
which had sprung out of local wants and circum- 
stances, and the inviolability of the inalienable right 
which every citizen had in such governments : con- 
cerning this there could be no dispute. In course of 
time, the accessions to the party which made itself 
the champion of this " doctrine " became so great as 
to drive the Federalists off the field. At first it was 
the fear of compromising this fundamental principle, 
which produced so weak a government as that of the 
Confederation and caused many of the most patriotic 
men to withhold their assent to the adoption of the 
Constitution. Once adopted, it was these men who 
led public feeling to the point of giving it a fair 
trial; and it was these men, who, recognizing its merits 
and observing its success in the practical working of 
government, became its staunch adlierents and advo- 
cated a rule of construction which would ensure the 
intention of its framers. When they appealed to the 
instinct of local seK-government, the appeal was an- 
swered throughout the land, and proved to be the 
most general, most unsectional, and most popular 
impulse ever known in our annals. 

2. It is not difficult to infer, if the measures of the 
Treasury tended to the aggrandizement of the moneyed 
classes, who were the creditors, that the debtors looked 
for protection to the leaders of the opposition. Now 
the debtor classes embraced, a, the lower grades of 



148 THE FORMATION OF PARTIES. 

officers and the disbanded rank and file of the late 
army ; 6, the small traders who were dependent upon 
the great ones and the money lenders ; c, the agricul- 
turists, particularly those, who, in the northern states, 
lay between the rich fields of the seaboard and the 
frontier. These held small farms which in great part 
were covered with woods and whose clearings were 
still encumbered with stumps. Little money circula- 
ted among them, and trade was conducted by the un- 
equal method of barter. Their indebtedness though 
not actually great was relatively so, as every debt is 
great to him who has not the money wherewith to dis- 
charge it. f?. The merchants without foreign credit, 
and who were distressed by the enchancement of val- 
ues in the commodities whose ingress was hampered 
by the restraints put upon certain species of commerce 
by Great Britain. Inasmuch as the great depression 
which followed the peace, produced wide-spread loss, 
which augmented the waste and destruction of an ex- 
haustive war, there were few localities wherein the 
debtors did not largely predominate and few which 
did not supply a contingent to the new party. 

3. The southern planters with whom the principle 
of local self-government was all-powerful, began to 
change front, and it will be seen that Virginia pro- 
tested against the assumption of the state debts as a 
palpable violation of the Constitution. The building 
up of moneyed classes which could flourish only in that 
part of the country where society was concentrated, 
that is the North, augmented sectional feeling, which 
already had been aroused by the contentions in the 
convention over the slave trade, the fugitive slave 
clause, and the representation of slaves in Congress. 



TWO FUNDAMENTAL NOTIONS. 149 

Apart from this, the creation of a moneyed class, 
anywhere, north or south, tended to develop appre- 
hension on the part of the great planters, whose wealth 
consisted not in money but in land and slaves. Such 
a class would be a rival to be feared. Alarmed, then, 
by a policy which ran counter to their interests at 
every step it took, they ranged themselves with the 
opposition. Perhaps it was in deference to this gen- 
eral change of sentiment in his state, that Madison 
took counsel of his fears respecting the encroachment 
upon the rights of the states, and arrayed himself in 
open opposition to Hamilton's measures. 

Two notions animated the landed or farming classes, 
for the integrity of which they seemed ready to sac- 
rifice everything material. One of these was, that 
sovereignty has its source in the people and that the 
power to exercise it is a power delegated by the peo- 
ple, to whom accountability for such exercise is obliga- 
tory. The other was, that there is a tendency in power 
to concentrate into single hands ; that the disposition 
to abuse power is inherent in the nature of man, and 
that, therefore, no greater power should be granted 
than that which is indispensable to the management 
of public affairs. These two notions had grown up 
insensibly with the people, and colonial history af- 
fords illustration of their development and of their 
existence as deep, underlying forces of political action. 
The conditions of colonial life had been favorable to 
the development of these principles ; the history of 
the people of England, especially that jjortion of it 
which embraces the Cromwellian wars and the Revo- 
lution of 1688, served to strengthen and confirm 
them, and when we reached the point where we had 



150 THE FORMATION OF PARTIES. 

to set up a general government for ourselves, they 
liacl become so deeply rooted in our nature, as to be- 
come all-prevailing political forces. In accounting for 
the constitutional events of those times, we must 
never let these principles get out of sight, and they 
should be as carefully kept in view in observing the 
formation of parties. 

Akin to these sentiments was the dread of standing 
armies, the aversion to class, and particularly to such 
distinction as was hereditary. This sentiment had its 
origin in the democratic nature of society, but it is to 
be observed that this aversion was not manifested to- 
wards such classes only as were hereditary, or of an 
aristocratic nature. The favoring of any set of people 
as a class, whether from economical reasons, such as 
the necessity of stimulating trade, or from political 
notions, as for instance a class of office holders, was 
equally obnoxious. The worst of all classes were " the 
artificial classes." As for the doctrine of " church 
and state," though fear of its establishment in practice 
never was general, and, at the period of our Revolu- 
tion, had long ceased to have any real vitality even in 
the localities where the church had been established, 
nevertheless, the apprehension of an intention to im- 
pose the establishment upon the colonies, was an im- 
portant motive of revolt. 

Thus the opponents of the administration were 
composed of those whose attachments to the principle 
of local self-government led them to contest the mere 
appearance of encroachment ; the great debtor class ; 
and the small agriculturists and traders of the North 
and the great planters of the South. 

It is not to be supposed that sections of the country 



MISTAKES OF THE FEDERALISTS. 151 

or that classes of tlie community acted in mass. The 
same anomalies which strike us to-day were apparent 
then : Madison, the Father of the Constitution, be- 
came a leader of the anti-Federalists, as did Han- 
cock, a representative of the commercial and moneyed 
classes. It is not an anomaly, that Samviel Adams, 
who had opposed the pretensions of the British Parlia^ 
ment so bitterly, should resist an administrative policy 
which enroached upon the rights of the states, nor 
that the mass of the disbanded army which had been 
moved by the same impulses that actuated this leader, 
should be found upon the popular side. 

When we consider the constituents of the two par- 
ties, we cannot but conclude that the opposition had 
the greater supplies to draw upon, both in votes and 
in popular principles. In fact, had not the Federalists 
been especially favored by circumstances, it is safe to 
say that they never would have obtained possession of 
the government. They rode into power upon the 
Constitution, against which anti-federalism had not 
been generally organized ; and the adoption of this 
instrument was due quite as much to fortuitous cir- 
cumstances as to its merits. In the first place, such 
was the public distress and such the necessity of 
speedy relief, that men were not disposed to judge a 
reasonable frame of government censoriously, but 
were ready to accept any good thing which the gods 
should send them ; next there had not been time suf- 
ficient for the transformation of the skeptical and 
halting into active opponents ; again, positive opposi- 
tion was sporadic both in locality and class, while the 
advocacy of the Constitution, pressed with force and 
brilliancy, was organized and acting in perfect con- 



152 THE FORMATION OF PARTIES. 

cert ; finally, " Shay's Rebellion " tnrned the scale in 
the nick of time. The Constitution thus brought the 
Federalists as an organization along with it, and had 
their self-restraint and skill been equal to the situation, 
no reason is apparent why their possession of the ad- 
ministration should not have continued for a genera- 
tion. As it was, they were in power for twelve years 
only, and it is clear that they had not been supported 
by public sentiment for a number of years previous to 
their fall. The reason of this is, that, while organiz- 
ing the government, they neglected to organize public 
opinion. Long before they reached the point of de- 
fying this opinion, they had lost the right to expect 
its support by a series of measures which manifest 
anything but skill in popular government or regard 
for popular sensitiveness. Blame should not be at- 
tached to them for the unpopularity of measures 
which were positively demanded by the needs of gov- 
ernment, and yet were exceedingly onerous to be borne ; 
but even the most centralized of governments are not 
above feeling the public pulse and of conforming 
themselves to its beats, and this the Federalists did 
not do. The Constitution having been accepted and 
inaugurated, they were seized with the impulse to 
strain its provisions to the utmost, and they rode it to 
death. The funding of the debt was accompanied by 
jobbery for which the Treasury was not directly re- 
sponsible, but by wliich it was tainted ; the assump- 
tion of the state debts, which certamly could have 
been delayed until authorized by a constitutional 
amendment, was pressed with a rough hand in the 
teeth of state protest ; the incorporation of the Bank 
was driven to a successful conclusion, though its ad- 



FEDERAL DISTRUST OF THE PEOPLE. 153 

vocates had failed to prove it " necessary," and in 
spite of the manifest coohiess of the President towards 
the project ; the excise bill occasioned an " insurrec- 
tion," which, to say the least, did not incur unquali- 
fied reprobation in the capital of the state where it 
occurred, or even among all the colleagues of the Sec- 
retary of the Treasury hunself. Either the art of 
governing had not yet become familiar to Hamilton, 
or it was defied. 

In addition to these unpropitious measures, the tone 
of the Federalists was not assuring to those who con- 
sidered the Constitution a popular work, and one 
which had been created for the people, without class 
or distinction. Irritated by persistent opposition, 
Hamilton was betrayed more than once into express- 
ing lack of faith in the Constitution, and distrust of 
public opinion as a governmental force. That men 
were " reasoning rather than reasonable " beings, was 
not a novel idea ; in fact every government hereto- 
fore had been founded upon the assumption that the 
masses were unequal to the task of self-government, 
and therefore that the many should be controlled by 
the few. But, rightly or wrongly, the peoj)le believed 
that they did possess capacity for self-government, 
that the Constitution expressed this belief, that now 
or never was the time to put it to trial, and that the 
administration should not be in the hands of those 
who were not wilhng to make the experiment. Thus 
the reluctance to adopt the Constitution by those who 
feared its effects upon their local self-government, 
gave way to a general disposition to give the Consti- 
tution a fair trial, and thus the very men who had 
been lukewarm, became its earnest supporters : as the 



154 THE FORMATION OF PARTIES. 

faitli of the Federalists in the Constitution waned, 
popuhir faith in it waxed in strength. The people 
saw the opportunity for testing their caj)acity for gov- 
ernment outside of petty localities and were deter- 
mined to take advantage of it. How disappointing, 
not to say alarming, were expressions indicating lack 
of sympathy with this vital movement, need not be 
dwelt upon. Nothing facilitated among the people 
everywhere the formation of a feeling antagonistic to 
ultra-federalism so much as this tone of distrust and 
the consciousness of class distinction, and thus the 
masses became ready for opposition to the administra- 
tion. It was unfortunate too, that during the first 
days of Congress it should have been brought into 
close contact with these sentiments in New York, the 
former stronghold of Toryism. 

Another cause of adverse feeling against the Feder- 
alists was, that their notion of the central government 
was not objective enough to strike the popular eye. 
A government which is construed into existence evi- 
dently exists in the mind only ; and a popular govern- 
ment expects too much when it demands fealty to 
what it cannot jjresent to the senses. Moreover it vio- 
lates the fii'st maxim of governmental constitution — 
that though authority should be rather felt than seen, 
the source of authority must be obvious and apparent 
and be something upon which hands can be laid. Ac- 
cordingly when the people were told that, to all in- 
tents and purposes, they were a nation before they 
had reconciled themselves to the idea of becoming one, 
that this nation was invested with sovereignty, that 
the whole people of the United States was already a 
political power distinct from the states, or the people 



NEED OF FIXED FOREIGN POLICY. 155 

of the states, and " that the residuary sovereignty of 
each state " was all that remained to the people of 
this state,! they naturally inquired what this " re- 
siduary sovereignty of each state " was, and were an- 
swered, that, according to the terms of their compact, 
it was the luienxunerated powers, but that by the oper- 
ation of liberal construction, these had been reduced 
already, and what woidd be left in the future, the 
future only would disclose. 

During the early days of Washington's administra- 
tion, public attention had been concentrated upon the 
organization of the government and the establishment 
of a fiscal policy. Domestic affairs had occupied the 
energies of the country to the exclusion of almost 
everything else. External affairs, in the meantime, 
had been steadily assmning a shape which soon called 
for a definite and stable foreign pohcy. A new being 
appearing for the first time within the circle of the 
great powers, coidd not long avoid giving an answer 
to the question, What is to be your attitude towards 
us, and what the principles upon which you will con- 
duct your foreign affairs ? This question had peculiar 
significance, inasmuch as unfamiliarity with our con- 
stitution caused doubt in the minds of foreign powers 
as to where the ultimate sovereignty of our system lay. 
This unfamihar shape needed explanation, and no one 
could give it but itself. The events then progressing 
in the old world urged a speedy determination. The 

^ Chisholni v. Georgia, 2 Dallas, 471. As to the leafling defects of 
the Constitution, and objections to the Constitution, see Story, Consti- 
tution, Book II. chap, iv, sect. 248 et seq., and Book III, chap. ii. 
Also Address of the minority in the Pennsylvania Convention, 2 
Amer. Museum, 586, 543, 544, 545 ; Address of Virginia, 2 Pitkin, 
334. 



156 THE FORMATION OF PARTIES. 

policy adopted by Great Britain in reference to our 
navigation and commerce, was daily presenting ques- 
tions and assuming a tone which coidd not be ignored, 
and the French Revolution, fast running a course of 
which the end and its results could not be prognosti- 
cated, added to the complications of the family of na- 
tions and increased the perplexity of our department 
of Foreign Affairs. Were our government completely 
organized and had our trade beyond seas been recu- 
perated, the task of the Secretary of State would not 
have proved so difficult. But the government was 
not yet completely organized, nor was trade upon a 
sound foundation ; a foreign policy should be founded 
upon fixed domestic conditions, and order and settled 
principle should be first established at home. Such 
was not the case, but had it been so and had a definite 
policy been determined upon, there was nothing where- 
with to enforce it ; no navy existed to protect our 
rights upon the high seas, no army had taken the 
place of that which had been disbanded, and our 
northern frontier was still occupied by British troops. 
Thus, without the means of making good a policy, and 
with a late enemy still keeping a foothold upon the 
soil, the Secretary of State was not in a position to 
assert a positive foreign policy. Circumstances, to 
say the least, were such as were liable to change at 
any moment, and with them the policy which they 
supported. 

With the assemblage of two national Houses, one 
of which represented the people themselves, the strife 
of local interests and of governmental principles, 
which had manifested itseK in the state legislatures, 



THE FIRST CABINET. 157 

the constitutional Convention, and the ratifying Con- 
ventions, was transferred to the First Congress. 

Nothing could be more propitious for party devel- 
opment than the composition of the first cabinet. 
President Washington, alive to the necessity of unit- 
ing in his cabinet intelligence in the constructive 
administration of internal affairs, and skill in the 
management of foreign affairs such as would steer the 
young republic safely through thickening complica- 
tions, had called Alexander Hamilton to the Secretary- 
ship of the Treasury and Thomas Jefferson to that of 
State. As far as efficiency for their duties is concerned, 
no better selection could be made, and, doubtless, the 
President aimed at the moral effect which would be 
produced by the harmonious cooperation of two men 
who represented dissimilar notions of government. 
Everything was yet to be done ; the country was not 
even free from the presence of its late foes, for the 
northern military posts were still occupied by British 
garrisons, and the unhappy and distressed people, 
sunk in poverty and despair, was torn by conflicting 
factions. It was reasonable to sujjpose that the spec- 
tacle of rej)resentatives of different sections and of 
differing principles uniting their energies in common 
effort for the general welfare would exert a salutary 
influence upon the factions, and tend towards calming 
the popular temper. Whatever the motive of the 
President, it is now easily to be seen that nothing 
better could have been devised to effect the evolution 
of parties. The inevitable course which opposing 
notions in politics pursue was speedily taken : two 
sets of doctrines began to define themselves, then to 
form into systems, and at last to oppose each other. 



158 THE FORMATION OF PARTIES. 

Public sentiment kept pace with this formative process, 
and men ranged themselves on one side or the other ; 
so that, when the first presidential term had closed, 
two great parties had already absorbed the diverse 
factions, and, confronting each other, were ready to 
contend for the possession of the national government. 

Never did a field offer more important subjects for 
diversity of sentiment ; never were times richer in op- 
portunity ; never were leaders better fitted for party 
organization ; and never was a people upon whom the 
necessity of making choice of principles pressed more 
heavily, or whose ardor for practical politics exceeded 
that of the Americans. Time and circumstance com- 
bined in affording the opportunity ; the character of 
the leaders and the disposition of the people called 
every element and quality into play. 

The debates in the constitutional Convention had 
brought out, with startling distinctness, reluctance to 
innovation and absolute sincerity in the effort to cre- 
ate an enduring polity. Necessity compelled union, 
and, though the popular majority which decided the 
adoption of the Constitution was not great enough to 
assure confidence, the acquiescence which followed re- 
vealed the general feeling that, now that the Consti- 
tution had been adopted, it should have a fair trial. 
The administration, consequently, entered upon the 
task of governmental organization sustained by a sen- 
timent which, if not heartily sympathetic with it, 
was by no means adverse to the experiment. At all 
events, there was no organized and effective obstruc- 
tiveness for it to encounter. 

Jefferson, at the outset, was absent from the coim- 
try, being on his homeward journey from France, 



THOMAS JEFFERSON. 159 

where, during the past five years, he had represented 
the United States as minister. He had left home the 
year following the peace, and before the illusions 
which came with it had given way to realities more 
bitter than the war itself had been. Distant from the 
depression and distress into which the country had 
sunk, his knowledge of internal affairs had been ob- 
tained only from his official and private correspond- 
ence, and from the journalistic reports which were 
common to all. He had taken no part in the making 
of the Constitution, and his views of this instrument 
were unclouded by the agitation which personally 
affected its framers. The only constitution-making, 
indeed, with which he had had anything to do had 
been confined to suggestions offered by him from time 
to time, on request of various leaders of the French 
Revolution which was then in progress under his eyes, 
and with which he heartily sympathized. He could, 
therefore, consider the Constitution of the United 
States, not only with the judgment of one who had, 
all his life, reflected deeply upon the nature and 
structure of governments, but also with the cool criti- 
cism of a bystander. One thing only might affect 
this judgment unduly, and this was that his predilec- 
tion for making the rights of the individual the begin- 
ning and the end of all government had become ex- 
travagant from his sympathy with the French people 
in their struggle against absolutism. There can be 
no doubt that Jefferson brought home with him an 
abhorrence of everything monarchical and aristocratic, 
and that he was disposed to view any measure which 
was not altogether popular in its nature as a step 
towards absolutism. If his interest in the success of 



160 THE FORMATION OF PARTIES. 

the Constitution was devoid of the enthusiasm which 
naturally appeared in many of the men who had had 
a hand in its making, hostility to it was not harbored 
by him. The mental force of the man elevated him 
above the trivial objections which had been urged 
against its adoption, and, though it possessed fea- 
tures which did not altogether suit him, he was ready 
to give it a fair trial. His disposition towards the 
Constitution, then, may be deemed fairly favorable, 
and this disposition had been strengthened by no less 
an advocate than James Madison, who, while keeping 
him thoroughly informed of its progress, from incep- 
tion to adoption, had explained away objections, and 
had advanced arguments in its favor, which his quick 
and comprehensive mind had readily accepted. The 
Constitution, therefore, may be said to have success- 
fully passed his scrutiny, and to have been accepted 
by him, not as a mere relief from present ills, but as 
an organic structure which was to be perpetual. It 
may be considered as a substantial advantage that 
the first administration had among its members one 
whose character and intellect were of such high order, 
yet whose judgment of the Constitution was unbiassed 
by the prejudices of a partisan.^ 

1 When Jefferson, in the spring of 1790, returned from France, he 
found that which is now the Democratic Party a body with a code 
of principles, and active in the performance of its functions. It 
lacked much of being a fully developed party, for its organization was 
not complete, its discipline was imperfect, it had no leader, and it was 
nameless : yet, for all this, it was a party, for what oi-ganization it 
had carried it beyond the mere faction, discipline would certainly 
come in time, and so would a leader and a name, and, above all, it 
had principles, — definite, clear, authoritative, and exacting princi- 
ples ; moreover, it had the enthusiasm of the neophyte, and the pro- 
pagandism which offers to the doubter the choice between the Koran 



ALEXANDER HAMILTON. 161 

Hamilton, on the other hand, appeared upon the 
scene in a quite different character. He came a vic- 
tor, fresh from a struggle which had riveted upon 
him the eyes of the whole country, and, from the be- 
o-innino- of what appeared to be a hopeless contest, 

t)ib 111 •! 

down to its triumphant conclusion, he had sustamed 
liimself with force and brilliancy which have had no 
parallel m our history since that day. If any single 
being can be said to have secured the adoption of the 
Constitution, he was the man. His duties in liis state 
had abridged his action in the Convention ; but, no 
sooner had the Constitution been given to the people, 
than he began a course of advocacy, which, had there 
been nothing else to mark his career, would have 
made him one of the most distinguished men of his 
generation. He at once took up his pen, and to him, 
more than to any other, we owe "the Federalist." 
It was in securing the adoption of the Constitution 
by his own state that he became, for a time, the most 
conspicuous man in the land. The opponents of the 
Constitution might almost be said to have been un- 
pregnably entrenched in New York. Few men ever 
have attained the control of a locality such as George 
Clinton then had of that state, and his defiance of 
the Constitution and its advocates was anything but 
bravado. When, then, in the midst of the discussion, 
or rather struggle, the leader of the opposition to the 
Constitution, Melancthon Smith, announced his radi- 
cal and total conversion to its adoption, great was the 

and the bowstring. The party had already been " founded," and was 
awaiting a leader and a name only, before emerging from immatur- 
ity and setting forth upon the career of conquest which was to carry 
it into power by " the Revolution of 1800." 



162 THE FORMATION OF PARTIES. 

sensation throughout the country; and greater still 
the joy of the Federalists, as the friends of the Con- 
stitution were styled, when Hamilton presented him- 
seK before Congress with the ratification by New 
York. His appearance in the Cabmet was justly re- 
garded as that of one to whom the inauguration of 
the Constitution and the care of its fortunes had been 
especially entrusted. However lukewarm or adverse 
to it others might be, he was universally regarded as 
its friend and supporter, and one whose personality 
was linked with its success or failure. In looking 
back upon those times, it cannot be denied that the 
President, in committing its destiny to one so identi- 
fied with its fate, acted wisely. If the Constitution 
was worth trying at all, its fortunes should be con- 
fided to those who would see that the trial was a fair 
one ; nor can it be regarded as anything but fortunate 
that the Cabinet should contain two men, one of whom 
would strain every nerve and encounter every hazard 
to give the new government an advantage at the out- 
set, while the other would be disposed to let it win its 
way upon its merits. 

The difference in character between these men 
could hardly fail to impress itself upon their ad- 
herents ; but it was the difference in their principles 
which eventually decided the character of the parties 
they were to lead. It is to be seen already, in the 
Federalist, that Hamilton had declared the great 
necessity of the hour to be a government which 
should act upon the individual citizen, and not solely 
upon the states in their corporate capacity ; and it is 
also to be seen that it is this characteristic which 
chiefly distinguishes the Constitution from the Arti- 



ADVERSE PRINCIPLES OF THE LEADERS. 163 

cles of Confederation.! Nothing showed the differ- 
ence between the two leaders more than the views 
entertained by them in this respect : Hamilton's opin- 
ion being that the direct action of the central govern- 
ment upon the citizen was too restricted ; Jefferson's, 
that it went too far. While Hamilton considered 
government to be the energy of a fully developed body 
politic acting upon the citizen as a means to an end 
present to the common will, Jefferson looked at gov- 
ernment as the means whereby the end present to the 
majority of individual wills should be attained. The 
individual was the political entity to Jefferson ; to 
Hamilton, the state. This state, in Hamilton's eyes, 
was the central government, the one recently created 
by the delegation of sovereign powers of the many. 
In proportion as this waxed, the others waned, and he 
recognized nothing to be the equal of that in which 
reposed the powers of greatest magnitude. Number 
of powers was much to him ; magnitude of power was 
still more. The government which made war and 
peace, which stood before kings and treated with 
them, and whose heavy hand was felt to the utter- 
most parts of the earth, this was the real and superior 
government. Not so thought Jefferson ; to him, that 
which related to the soil was greatest, and the crea- 
ture which sprang from its dust was superior to the 
one which owed its being to the breath of men, and 

^ " The powers of a general government, either of a legislative or 
executive nature, or which particularly concerns treaties with foreign 
powers, do for the most part (if not wholly) afPect individuals and not 
states : they require no aid from state authorities. This is the great 
leading distinction between the old Articles of Confederation and the 
present Constitution." Chisholm v. Georgia, 2 Dallas, 435, Iredell, J. 
See also, ante, pp. 9, 101, 105, 117, 118. 



164 THE FORMATION OF PARTIES. 

wliicli, almost invisible and intangible, dwelt in the 
minds of men only and was expressed in the fading 
characters which were traced on parchment. The 
end of government was the greater good of man, and 
what concerned his welfare was the real motive of 
politics. What was government but the control and 
regulation of the citizen by himself ? and how could 
this self-control be exercised, but by his possession of 
the powers natural to him ? Why should one man 
ever ride another ; and why should government rec- 
ognize a condition beyond that which was necessary 
for the common good? To Jefferson, therefore, the 
acqviisition of power and of security and tranquillity, 
at the cost of personal liberty, was not only a shock-, 
ing doctrine, but was an anomaly and contradiction 
which his mind refused to entertain. What advan- 
tageth it the master, that his servant be greater than 
he ? and what the glory of standing before kings, if 
one stand clothed with powers not his own ? The 
true glory of government lay in its efficacy to develop 
the individual, not in its display of power. What- 
ever concerned the individual, this only was the sub- 
ject of government ; whatever concerned his weKare, 
this only should rouse it to action. The life-work of 
the citizen lay at home, within sight and sound of his 
door, and the real object of government was to see that 
he was let alone. The right to be tried by a jury of 
his peers, to have his sjjeech free, his person sacred, 
the thousand rights and powers which cluster around 
his hearth, these were the true objects of government, 
and the least of them outweighed the splendor of the 
greatest combmation of forces men were capable of. 
Thus, the very element which distinguished this Con- 



LOCAL SELF-GOVERNMENT. 165 

stitution from its predecessor, the direct action of tlie 
central government upon the citizen, did not commend 
itself to him as a feature to be accepted without ques- 
tion, and to be iu"ged without restraint ; but it ap- 
peared rather as one not exempt from criticism, and 
as one not to be acted upon, unless it were under the 
control and mastery of the individual himself. The 
want of such a principle had demonstrated itself 
under the Articles of Confederation, and such a 
governmental force would have to be accepted ; but, 
with Jefferson, acceptance meant toleration ; its exer- 
cise must be subject to limitations defined and im- 
movably established, and the occasion of its applica- 
tion must be one which was obvious and unmistakable, 
and against wliich argument was in vain. When it 
acted, it should act as a servant acts for its master. 

Such beings the radical difference between the views 
of government entertained by these men, it is easy to 
see that ancient local self-government spoke through 
Jefferson, and that centralization of powers in a gov- 
ernment superior to the local organisms found utter- 
ance through Hamilton. Each of these men, in 
course of time, was wrought to the pitch of believing 
and averring that his opponent would surely bring 
about anarchy or despotism ; ^ and it can hardly be 
disputed, if the principles of either shoidd go to an 
extreme, that the failure of the Articles of Confedera- 
tion might be repeated, or that such centralization of 

^ The accusations of the JefFersonians have been regarded as the 
merest political vituperation. They were not so ; they went to an un- 
warrantable extent, it is true, but they were made earnestly. The 
JefPersouians looked on the Hamiltonian policy as setting- at naught 
the goodness in man, and as deliberately substituting for it evil as a 
principle of government. 



166 THE FORMATION OF PARTIES. 

power in the general government niiglit ensue, as 
would terminate at last in the subversion of local 
self-government and the substitution of irresponsible 
authority. Though the possibilities of doctrines are 
never to be lost sight of, few are the Americans of 
the present generation who could harbor the belief 
that either of these men was what his opponent fancied 
him to be : that the man who wrote the Declaration 
of Independence and insisted on a Declaration of 
Rights could entertain political principles which were 
certain to end in anarchy ; or, that the man who wrote 
the Federalist and did so much for the adoption of 
the Constitution was striving to bring about a con- 
solidation of the states and the establishment of an 
all-powerful despotism ! Nevertheless, the bitterness 
and prejudices of the day have made themselves felt 
in government at all times, and their presence cannot 
be ignored during a period when monarchists in our 
midst still hoped for the subversion of democracy, and 
when the youthful " Jacobins " of Philadelphia turned 
from the men who composed the Federalist, to take 
their notions of politics from the sans-cidottes of the 
Faubourg St. Antoine. 

The doctrines of Jefferson and Hamilton need not 
be pursued to the extremities which it is improbable 
that the conservatism of the people will ever suffer 
them to reach. They have been in active operation 
for a century ; they have controlled the administration 
and legislation of a country which has multiplied its 
population many times over ; they have demonstrated 
their power to effect the assimilation of diverse races ; 
they have survived foreign and civil wars, and they 
are still confronting each other. We are safe, there- 



THE OLD SCHOOL. 167 

fore, in accepting them as positive and enduring ele- 
ments in the history of our politics down to the civil 
war, and, adopting them as political creeds, we may 
observe their influence upon the formation of the two 
great parties in the United States. 

The two ways of regarding the end of government 
had divided the people themselves, and had rapidly 
assumed the characters of schools. 

One of these schools di'ew its inspiration from the 
past and rested upon experience. It took the position 
that political history showed, that the conflict between 
good and evil in man had been an unceasing one, and 
that government should recognize it by maintaining 
from the beginning strength sufficient to overcome the 
evil ; but, inasmuch as this had never yet been thor- 
oughly accomplished, that the evil in man should be 
so far recognized as to turn it to the advantage of the 
state. This, they claimed, had been reached by the 
British system more nearly than by any other govern- 
ment since the days of the Athenian democracy or 
those of the Roman RepubKc. The men of this school 
took the world as they found it ; and they pointed to 
the experience of the British empire, wherein the cor- 
ruptions of Walpole and his successors had enured 
more to political stability than had the experiments 
in constitution-making of the Commonwealth ; experi- 
ments which had been rejected finally by the British 
people m favor of the old system with limitations. 
Therefore, they would confine themselves to tried prin- 
ciples and ancient forms, and woidd retain the British 
system, but would have it purged of its corruption and 
divested of the characteristics and methods which 
'were incompatible with a republic and a federation, 



168 THE FORMATION OF PARTIES. 

and would adapt it to the novel conditions existing in 
a new country. 

Such was the view taken by the Old School : it 
was the school of experience, of conservatism, of aver- 
sion, to change, of timidity, and of content. 

The New School looked to the future for its inspi- 
ration, and placed its hopes upon experiment. It 
caught at the recognition by the Old School of evil as 
a governmental force, and insisted that in politics fear 
of evil had always supplanted faith in goodness, and 
that, in consequence, the past and the present political 
systems of the world had not been founded upon the 
strength but upon the weakness of man and his 
assumed incapacity to govern himself, and, hence, that 
each and every government had for its controlling 
motive the necessity of a ruler. This school rejected 
the doctrine of original sin, and reversed the ancient 
political creed : it would have for the corner-stone of 
the new fabric avowed faith in the capacity of man 
to govern himself, and, presuming that man was more 
good than bad, and that the development of the good 
was tantamount to the suppression of evil, it would 
have the administration of the government act upon 
the assumption that men were strong and capable. 
This school extirpated the " ruler " from government ; 
it maintained that government was not a science sus- 
ceptible neither to new ideas nor to further develojj- 
ment, and pigeon-holed as complete, but that the 
history of the colonies themselves proved that no sci- 
ence had been more generative of new ideas or more 
productive of new forms. It pointed to the self-gov- 
ernment with local representation which Virginia had 
acquired within twelve years of its foundation ; to the 



THE NEW SCHOOL. 169 

representative democracy and written constitution of 
Connecticut ; to the toleration of Maryland and Penn- 
sylvania ; to the freedom of conscience and of speech 
in Rhode Island ; and to the reservation of power in 
the people of New Jersey. All of these innovations, 
it asserted, had been constituted elements of govern- 
ment ; all had been adopted on the assumption that 
what was good in man was superior as a governmental 
force to the evil that was in him, and that men were 
capable of governing themselves, and that all these 
instances had justified this assumption by their long 
and sorely-tried experience. 

This school asserted, further, that this rich growth 
of pohtical principles and of governmental forms was 
due to the fact that the predilection of the colonist 
for self-government had been unrepressed by the re- 
mote principles and forces of Europe ; that, left to 
itself, its expansion had been natural and healthy, and 
that, the same conditions still existing, new develop- 
ments would continue to appear. If these things had 
been done in the green tree, what would be done in 
the dry ? Men of this way of thinking remembered 
that Oxenstiern had told his son that the world was 
governed too much, and they were determined that 
self-government itself should not govern too much. 
They had seen the colonies rebel, form states, combine 
and carry to a successful termination a prolonged de- 
fence against the greatest of earthly powers, and do 
this Avithout common headship, without common legis- 
lation, and without common courts ; and thus, from 
their own experience, they had proof beyond question 
that, to a free people, neither " a ruler " nor " a strong 
government " is necessary, and in fact, scarcely any 



170 THE FORMATION OF PARTIES. 

government. They insisted that the Revokition would 
prove abortive, were it to stop ^vith a change of forms 
merely, and without an assertion of the principles 
acted upon by the colonies, and without a way left 
open to future develojjment. 

It is clear that this school did not reject experience, 
but that it regarded the experience of its own people 
as a new dispensation in politics, which it woidd sub- 
stitute for the European notions of government hence- 
forth to be discarded. It was radical in its nature ; 
and it was the school of hope, of faith in human 
nature, of experiment, and of endeavor. 



CHAPTER IX. 

THE FORMATION OF PARTIES CONTINUED. 

Parties form on Hamilton's measures — Contrary constructions of the 
Constitution ; liberal and strict construction — Madison leads the 
striet-constructionists in Congress — Personal feeling — Views of 
Hamilton's financial policy entertained by the Jeffersonians — Ham- 
ilton's system favored a plutocracy rather than an aristocracy. 

The inauguration of government under the present 
Constitution clearly illustrates tlie normal evolution 
of parties. So vast was the constructive work to be 
done that, when Hamilton assumed the Secretaryship 
of the Treasury, he became, from the force of circum- 
stances, the most important member of the Cabinet. 
He was, as long as the Secretaryship of the State re- 
mained vacant, the head of the administi-ation, and he 
had the field to liimself. Possessed with the notion 
that the government of the United States, as created, 
was intended to be supreme in the functions assigned 
to it, and supreme, too, as a power independent and 
undelegated, he conceived his first duty to be to in- 
vest it as soon as jDossible with tliis character. It 
is true that the powers bestowed upon the new gov- 
ernment by the states were few, and that these had 
been plainly enumerated ; but a constitution, from 
its very nature and for the most sagacious reasons, 
he conceived to be but a frame of government, a 
sketch, which legislation and custom are to fill in as 
circimistances require. The Constitution, therefore, 



172 THE FORMATION OF PARTIES. 

appeared to Hamilton as a text only for construction, 
and he maintained that this construction should be a 
liberal one. Within the narrow corners of the instru- 
ment lay a world of implied powers, which, dormant, 
would leave the government limited and restricted, 
but which, active, might endue it with unqualified and 
unrestricted sovereignty. It needed but the breath 
of liberal construction, and internal order would be 
evoked from chaos, and a great power would be added 
to the family of nations. 

Hamilton took his first step forthwith, and, in spite 
of opposition from the states which found no warrant 
for the measure in the Constitution, the federal gov- 
ernment assumed the war debts of the several states, 
consolidated them with the debt of the old govern- 
ment, and funded all in mass. There can be little 
question that Hamilton's motives in introducing this 
measure were not restricted to fiscal effects only, but 
embraced political effects, under the belief that the 
consolidation of the state debts with those of the gen- 
eral government would exert a cohesive force in favor 
of the new government, by organizing the public cred- 
itors into one body whose interest would be united 
with that of the administration ; perhaps, too, he 
found in this scheme a wished-for precedent for fur- 
ther advance in liberal construction. 

Party lines began to define themselves in the 
debate which followed the submission of this plan to 
Congress. On one side, members spoke of "nation- 
ality," and were sharply reminded that, before the 
Constitution had been submitted to the final draft, the 
word " national " had been in sober second thought 
significantly erased, and the word " federal " written 



FEDERAL INSTEAD OF NATIONAL. 173 

in its place. The position was taken that, to exceed 
the powers enumerated in the Constitution, was to 
exert powers which had not been granted by the 
states, and which, consequently, were still retained by 
them, and that tliis use of powers belonging to other 
bodies was usurpation. In order, therefore, to resist 
a tendency to usurpation so manifest, the Constitution 
should be construed strictly ; that is, that the central 
government should be restricted to the exercise of 
such powers only as had been enumerated, and that 
these powers should be deemed to be, what the Con- 
stitution expressed them to be, delegated. In this 
way would the exercise of implied, or, as they were 
sometimes styled, " incidental " powers, be prevented, 
and the government be held to its resiDonsibdity as an 
agent in its exercise of enmnerated powers. Virginia, 
through her legislature, protested against the assump- 
tion of the state debts on the ground that it was a 
violation of the Constitution. 

The assumption of the debts was followed by a 
measure which heightened the alarm already taken by 
the anti-Federalists, as the opponents of the admin- 
istration were stiU inaptly styled ; this measure was 
the incorporation of the Bank of the United States in 
1780. There were only three banks at that time in 
the country ,1 and the supply of specie was inadequate 
to the wants of commerce and the government. Ham- 
ilton took advantage of these conditions to advocate 

^ The Bank of North America had been chartered for a term of 
ten years by the Congress of the Confederation in 1781 ; but in con- 
sequence of the general doubt of the power of Congress to do so, had 
been chartered also by the legislature of Peimsylvania in 1783 ; this 
Pennsylvanian charter was repealed in 1785, but had been renewed 
in 1787. 



174 THE FORMATION OF PARTIES. 

the measure on tlie ground of convenience. He was 
met in Congress, however, with the objection that the 
creation of a bank was the creation of a corporation, 
and that the power to incorporate was not one of the 
powers which had been enumerated ; that what was 
not enumerated was retained by the states, and that 
the exercise of such a power on the part of Congress 
was an encroachment upon one of the reserved rights 
of the states. In answer to this it was asserted that 
the Constitution must contain in itself everything 
necessary to carry on the government, otherwise it 
would be a nullity, and if these powers were not ex- 
pressed, it did not follow that they were any less 
present, or that the duty of bringing them into opera- 
tion was any less imperative ; that the presence of 
these powers was signified by the provision which be- 
stows capacity " to make all laws which shall be neces- 
sary and proper for carrying into execution the fore- 
going powers, and all other powers vested by this 
constitution in the government of the United States, 
or in any department or official thereof : " -^ that a 
bank is a necessary and proper means to carry on 
other enumerated powers, and, therefore, that Con- 
gress had capacity to incorporate the bank. It was 
admitted that Congress could not create a bank for 
merely general accommodation, but it was asserted 
that it coidd do so, if the primary object of its incor- 
poration was to subserve the purpose of the govern- 
ment. The opponents of the measure replied that 
this was too broad ; for, supposing that Congress 
might sanction the means for executmg the enumer- 
ated powers, the Constitution has expressly restricted 
1 Article I, sect. 8, el. 17. 



THE ENUMERATED POWERS. 175 

these means to sueli as are " necessary and j)roper." 
Let it be granted that a bank is proper, it does not 
follow that it is necessary ; the most that can be said 
of it is that it is convenient ; and the Constitution 
surely cannot regard mere convenience as a reason for 
the exercise of doubtful powers. 

It is evident that the opposition acquired a great 
advantage over the Hamiltonians at the outset, for it 
put them on the defensive. The Hamiltonians had 
now something more on their hands than mere advo- 
cacy of the measure ; they had to justify its right to 
existence, and this wore the air of an apology for 
presuming to appear. In the end this proved fatal to 
the Federalists. The Jeffersonians, on the contrary, 
planted themselves upon the doctrine that, when the 
states had granted delegated powers which they were 
careful to enumerate, and had reserved all others in 
themselves, it was contrary to right reason to construe 
the existence in the Constitution of any power other 
than those enumerated ; that the powers in question 
were not among those enumerated, and, holding up 
the Constitution, they defied their adversaries to point 
them out. This being an impossibility, the Hamil- 
tonians were driven to make their authority, and this 
they attempted to do by asserting the right to con- 
strue into existence powers which had not been ex- 
pressed, but which were " incidental " to those enu- 
merated, and which were necessary and proper for the 
exercise of such powers. The Jeffersonians admitted 
that Congress was bound to provide the necessary and 
proper means for the exercise of enumerated powers, 
but, 1, denied the right to establish any powers by 
construction ; declaring that to construe powers into 



176 THE FORMATION OF PARTIES. 

existence was merely a way of making another Consti- 
tution, and that this could not be done, inasmuch as 
Congress was not a Convention ; that, 2, the Hamil- 
tonian argument had been reduced to an absurdity 
because, failing to prove the measure to be such " ne- 
cessary and proper " means to an enumerated power, 
the administration had been driven already to the 
argument ex convenienti, and thus that, 3, the states 
would be at the mercy of any majority in the federal 
legislature which was disposed to take counsel of con- 
venience. Notwithstanding these objections, the Treas- 
ury carried its point. It trimnphed, but in doing so 
it had done a gTeater thing than it had contemplated : 
it had given its opponents a bond of union ; it had 
furnished them with the opportunity to define the 
principle of their opposition ; it had supplied them 
with a reason for being ; and it had helped the opposi- 
tion to organize. 

A significant event followed the exhumation of these 
implied powers : James Madison, whose part in the 
Convention had won for him the title of " Father of 
the Constitution," openly left the ranks of the admin- 
istration and joined the opposition. Madison, hitherto, 
had supported the administration heartily in its work 
of establishing the government on a stable foundation 
under the Constitution, but he was not prepared to 
establish one over the Constitution, and the illimitable 
prospect of encroachment by the central government 
upon the reserved rights of the states aroused his ap- 
prehensions. He now ranged himself with those who 
sought to curb the license which was sure to result 
from a rule of interpretation which could construe into 
existence any power desired by a majority of the legis- 



THE IMPLIED POWERS. Ill 

lature. His action was taken to signify that the chief 
framer of the Constitution did not regard it as subject 
to loose construction, and henceforth the opposition 
was not compelled to content itseK with a leader in 
the cabinet only, for it had one also on the floor of 
Congress. 

The development of parties is clearly revealed by 
the assumption of the state debts and the incorpora- 
tion of the Bank of the United States. Two schools 
had sprung into existence, and these were distin- 
guished by their modes of construing the Constitution. 
The necessity of a government which should combine 
certain powers of thirteen peoples into efficient action 
had developed the notion that such a government 
should act directly upon the individual. To do this, 
it had been necessary that the different sovereignties 
should part with some of their powers, reserving the 
rest, and that the peoples, who were thus subjected to 
diminution of powers, should themselves assent to the 
procedure. This done, the doctrine arose, and was 
entertained by a part of the people, that a new and 
supreme sovereignty had been created, a living, inde- 
pendent organism, endued with the powers as well as 
charged with the functions of sovereignty ; that the 
Constitution which established it contemplated unre- 
stricted action; that the enumeration of powers was not 
restrictive but suggestive, and that, consequently, the 
Constitution actually contained every power necessary 
to a sovereign ; that where there is a power, there is 
also the duty of exercising it, and, hence, that the true 
construction should be one which brought these latent 
powers to the light of day, and thus expanded and 
strengthened the central government. It is evident 



178 THE FORMATION OF PARTIES. 

that the underlying principle of this doctrine was, 
that central government in the United States was not 
federal but single, and that its powers were original 
and not delegated. The adherents of this principle 
had one very great advantage over their opponents : 
when the new government began its operation, they 
were already organized and they were in power ; 
nevertheless, the doctrinaires could not be said to 
constitute a party, for the word " party," in its politi- 
cal sense, implies an opponent, and this it could not 
be said to have. It must, therefore, still be denom- 
inated a school. 

On the other hand, as circumstances developed op- 
position, the opponents of the administration, mindful 
of ancient principles and chafing at the intrusion of 
new ones, became sensible of the fact that the preser- 
vation of their local self-government rested upon denial 
of illimitable power in the central government, and 
that the surest way to resist encroachment was to 
stand upon the very terms of the instrument, and to 
insist upon a construction which would restrict the 
government to the powers enumerated, and therefore 
they adopted the rule of strict-construction. That 
they constituted a school only, as yet, and not a party, 
is shown by the discussions of the day, which do not 
evince the identity of principle and the concert of 
action now exacted by every party of its constituents, 
but show that each man still thought and voted for 
himself with little reference to others. Reflection and 
discussion at last established the opposition upon a 
doctrine which did not rely upon argument only, but 
which drew to its support historical facts and those, 
too, which were fresh in the recollection. This doc- 



STRICT CONSTRUCTION. 179 

trine maintained that the local governments were cre- 
ators of the central government, and that logically the 
creator was superior to the creature ; that these local 
authorities were representatives and conservators of 
the natural and political rights of the citizens, whereas 
the central authority, wliich was altogether an arti- 
ficial being, represented merely specified powers dele- 
gated by its creators and to be exerted only for 
specific purposes, foremost amor.g which was the pres- 
ervation of local self-government ; that the central 
government could not be enlarged except at the ex- 
pense of the states ; that, instead of extension of 
power being conceded to the general government, re- 
striction of power to the terms of the instrument 
would alone conform to the intention of the framers, 
wliich intention was, that these powers were not sur- 
rendered, but delegated, and, hence, that the construc- 
tion of the Constitution should be a strict one. It is 
evident that the underlying principle of these doc- 
trines was, that government was made for the citizen, 
and could not be exercised to the furtherance of any- 
thing that affected unfavorably his right to local self- 
government. This principle, henceforth, assumed the 
character of an active and aggressive political force, to 
assert which its adherents organised and eventually 
became a party. 

It can hardly be said that the mere coherence of 
men entertaining similar prineij)les and ideas consti- 
tuted a party ; but circumstances were so productive 
of opportunity in the early days of the republic, that 
definition of principles and organization of party pro- 
ceeded with much gi*eater rapidity than they possibly 
could do in more settled times. The portfolios of the 



180 THE FORMATION OF PARTIES. 

cabinet teemed with measures, and the spirit of dis- 
pute possessed Congress. In those early days, the 
tyranny of routine and the omnipotence of committees 
were still unknown, and every measure, as it presented 
itself, met full and open debate : ^ time was afforded 
and taken to discuss the plans of government more 
as subjects of princijjle than of policy. Apart from 
Hamilton, it cannot be said that there was any one to 
urge a distinct or novel policy upon Congress ; but 
then, as far as the internal organization of govern- 
ment was concerned, Hamilton was everything. Mem- 
bers of Congress in time began to conceive of meas- 
sures in the light of policy as well as of principle, and 
What would the administration have us to do ? came 
to be a question which jiresented itself along with the 
bill. The impulse of resisting an administration meas- 
ure merely because it was such, it is true, had not 
yet acquired a footing ; but, such was the strong per- 
sonality of Hamilton, that it impressed itself on friend 
and foe, and his plans at last met resistance in the 
feeling that whatever originated from him nnxst run 
the gauntlet ; it may be assumed, too, that the Sec- 
retary of the Treasury had often to confront opposi- 
tion which forebore to encounter the President. 

The qualities which inspired the followers of Ham- 
ilton with so great enthusiasm, and his adversaries 
with equally great aversion, must have been singular, 
indeed. They found their match, nevertheless, in the 

^ It was not until 1799 that the House of Representatives consti- 
tuted permanent committees ; an example which the Senate did not 
follow until the second session of the Fourteenth Congress, in 1816. 

The Senate sat with closed doors until February 20, 1794. Maclay's 
Journal affords evidence sufficient for the assertion that senatorial 
discussion was very thorough, practical, and outspoken. 



OBJECTS OF HAMILTON'S POLICY. 181 

peculiar individi^lity of his rival, and it must be 
accepted as a fact that the jjersonal characteristics of 
the leaders early became positive elements in the for- 
mation of the parties they led, and that they stamped 
impressions which are not wholly obliterated at this 
day. If, for a time, Congress did not set forth two 
great parties, it was not long before it displayed two 
great clans, and it is for this reason that, instead of 
applying to them names indicative of party organiza- 
tion, during this brief period they came to be aptly 
styled Hamiltonians and Jeffersonians. 

In order to comprehend the feelings, not the prin- 
ciples, which played so important a part in determin- 
ing the ultimate character of the two great parties, 
we must look at the measures of the Treasury in the 
light in which they appeared to the opposition. Such 
became the virulence of personal feeling, and so dis- 
colored by it did party sentiment become, that the 
effort is not an altogether pleasant one. 

Let us consider what Hamilton declared the object 
of his financial poHcy to be. It is in these words : 
" To justify or preserve the confidence of the most 
enhghtened friends of good government ; to promote 
the respectability of the American name ; to answer 
the calls of justice ; to restore landed property to its 
due value ; to furnish new resources both to agricul- 
ture and commerce ; to cement more closely the union 
of the states ; to add to their security against foreign 
attack ; to establish public order on the basis of an 
upright and liberal policy, — these are the great and 
invaluable ends to be secured by a proper and ade- 
quate provision, at the present period, for the support 
of the public credit." ^ No one who appreciates the 

^ Report on the Public Credit. 



182 THE FORMATION OF PARTIES. 

ambition, tlie earnestness, and the purity of Hamil- 
ton's political character, can class this statement of 
principles with the ghttering generalities common to 
politicians. The plans that flowed from his exhaust- 
less brain, whether to be accepted within or without 
the Constitution, testify to his persistence in these 
purposes, and the untiring industry he bestowed upon 
his measures proves that to him they were real ob- 
jects of endeavor, and worthy of the utmost efPorts of 
liis life to attain. But, to Jefferson and his followers, 
the funding bill, the assumption of the state debts, 
the incorporation of the Bank, the excise law, the 
tariff, all the measures which followed in their train 
and were initiated by the Secretary of the Treasury, 
— all these, taken together, assumed the character of 
a scheme which, changing with circumstances, could 
have but one result : the subversion of local self-^ov- 
ernment and the establislunent of a general, central- 
ized, consolidated government in its place. To effect 
this, the fiscal measures proposed by Hamilton had 
for their object the erection of the capitalists into a 
controlling class, whose interest it would be to support 
the present admmistration, and to keep on extending 
the power of the central government. Thus, by the 
operation of the funding bill and by the assumption of 
the state debts, the public creditors would be organ- 
ized into a body which would share in the control of 
the country, through the pressure it l^rought to bear 
upon the government, its debtor ; by the excise bill, 
an army of officials, disseminated among the people 
and clothed with inquisitorial power, would be at the 
beck of the Secretary of the Treasury ; by the incor- 
poration of the Bank, the actual control of the money 



JEFFERSONIAN VIEW OF HAMILTON. 183 

circulation would fall into tlie hands of the govern- 
ment, and a party of dependents, who sought office or 
expected compensation for services rendered, would 
fill the lobbies, or even organize upon the floor of Con- 
gress a party which, holding the balance of power, 
coidd determine by their votes the fate of whatever 
legislation the administration was pleased to favor or 
condemn ; by a protective tariff, a new class, the class 
of manufacturers, would be created, and, though this 
would be but a subdivision of the moneyed class, nev- 
ertheless, by its concentration at the commercial cen- 
tres, it could make itself speedily felt in support of 
the government which had called it into being, and 
by whose breath it coidd be annihilated. This wholly 
artificial class would play a double part in enriching 
itself at the cost of the commmiity, particularly of the 
agricidtural portion ; for, at the same time that it 
brought strength to the central government, the state 
governments, most of which were founded upon the 
agricultural interests, would be directly weakened. 
" His system," said Jefferson, " flowed from principles 
adverse to liberty, and was calculated to undermine 
and demolish the republic. . . . The object of all 
these plans, taken together, is to draw all the powers 
of the government into the hands of the general 
legislature ; to establish means for corrupting a suffi- 
cient corps in that legislature to divide the honest 
votes, and preponderate their own way the scale which 
suited, and to have the corps under the command of 
the Secretary of the Treasury for the purpose of sub- 
verting, step by step, the principles of the Constitu- 
tion, which he has so often declared to be a thing of 
nothing, which must be changed." ^ 

^ Jefferson's Works, iii, 461, 462. 



184 THE FORMATION OF PARTIES. 

Such were tlie views of Hamilton's financial policy 
which were entertained by the Jeffersonians. They 
amount to the charge that the Secretary of the Treas- 
ury sought to establish a class government ; that this 
government would be founded upon the assumption 
that men were weak and base, and would recognize 
corruption as a political, governmental force ; and that 
such a government could not exist unless the present 
one should be first subverted. 

The disciples of Alexander Hamilton have univer- 
sally assumed that the measures he proposed when a 
member of Washington's cabinet, and the influence he 
exerted during Adams' administration, had for their 
object to impress upon the young republic a certain 
character which even yet has not been attained : that 
he did not believe that men had either the capacity or 
the character for self-government, and that, compelled 
to forego the establislunent of a limited monarchy 
after the British model, he still nourished in his heart 
the hope of an aristocratic repubhc, and bent all his 
energies and measures to the ultimate attainment of 
this end. 

That Hamilton had no faith in popular self-govern- 
ment we know, and we know, too, his aversion to de- 
mocracy and his admiration of the British monarchical 
constitution ; but he was a man of great sense, and he 
realized that the popular abhorrence of monarchy and 
aristocracy which prevailed among the American peo- 
ple rendered any scheme of the kind out of the ques- 
tion. That, in the absence of a form of government 
embracing king, lords, and commons, he would be con- 
tent with one divided into lords and commons, that is 



HAMILTON FOUNDS A PLUTOCRACY. 185 

to say, an aristocratic republic, may be believed ; but, 
as far as the measures he presented and the influence 
he exerted went, there is nothing to show that he ever 
contemplated this republic being an aristocratic one. 
If he did so, why did he not make use of the materials 
at hand to constitute such a government? From 
Mason and Dixon's line southward, no social constitu- 
tion was ever more aristocratic than the one which ex- 
isted when he became a member of Washington's cabi- 
net, and which remained so until it was subverted by 
the civil war of 1861. In this region, society was 
divided into the owners and the owned, and in his 
own state, upon the Hudson, the patroons had always 
constituted an aristocracy. This aristocracy, north 
and south, was built upon the only foundation which 
the history of modern civilization indicates as the real 
basis of ai'istocracy, land. With these abundant ma- 
terials at hand, and with the commonalty impoverished 
and at the mercy of the upper classes whose possessions 
had not been seriously diminished by the war, why did 
he not show his hand, if liis dearest wish was to found 
an aristocratic republic ? The iron was hot, and then 
was the time to strike it ; but he did not give the 
blow, nor do any of his measures indicate that such a 
design was in his mind. On the contrary, everything 
that he did was so opposed to the landed interest that 
he was hardly warm in his seat before this class was 
in array against him. This interest predominated in 
the anti-Federalist or new party to such an extent 
that, without it, the opposition would have been of 
little avail. The reason is clear, — the Hamiltonian 
measures, one after another, not only struck at the 
influence of the landed interest, but were directed 



186 THE FORMATION OF PARTIES. 

towards the creation of a class which was to take the 
place of such interest, and this was the moneyed class. 
Realty, as a lawyer would say, was to be made subor- 
dinate to personalty : the tariff was to build up man- 
ufactures, and the bank was to foster a body that 
dealt in money. Every measure was in the interest 
of the commercial and money-getting classes, but 
nothing was done for those who tilled the soil and 
paid the taxes, and who, at the South and along the 
Hudson, had for generations maintained the state and 
habits of a landed aristocracy. Surely, a policy so un- 
favorable to an aristocracy ready at hand cannot be 
taken as evidence of a desire to establish an aristo- 
cratic republic : rather must it be deemed to have the 
design of establishing a plutocratic republic. If the 
Hamilton ian policy had any definite and unmistakable 
object, it was to subvert the existing aristocracy and 
to put in its place a plutocracy. This it accomplished ; 
the landed interests became subordinate to the com- 
mercial interests ; the towns and cities waxed great at 
the expense of the plantations ; the notion of paternal- 
ism in government was planted in the minds of the 
people ; a crowd of dependents was fostered and or- 
ganized into semi-official agents of administration, and 
before Hamilton went out of office, the character of 
American society had changed. 

Posterity has this charge to make against Hamilton, 
that when their fathers had by their swords gained a 
position from wliich to start the experiment of found- 
ing government upon something higher and nobler 
than the fears and sordidness of human nature, and 
had the disposition to do so, he threw cold water upon 
this aspiration, sneered at the notion as visionary, and 



THE LOST OPPORTUNITY. 187 

frustrated the design by starting the young republic 
upon principles of administration which regarded men, 
first and last, as base and incapable. To him we owe, 
more than to any other man, unless it be Madison, the 
Constitution itself ; but to him we owe also the lost 
opportunity of making the experiment which might 
have proved that men are not base and incapable, and 
that government may have a better foundation than 
the fears and sordidness of human nature. It may be 
that the notion was a visionary one, but thousands of 
npright men, whose self-sacrifice had earned for them 
the right to make the trial, protested ardently against 
the young republic being invested with a character 
with which they had not endued it, and earnestly de- 
manded an administration upon far different princi- 
ples. This opportunity, the only one the anglican 
race has had since the days of the English Common- 
wealth, was denied to them and to the world, and the 
worst form of social constitution known to men, plu- 
tocracy, was forced upon the Americans. From Ham- 
ilton's time to ours, although more than once strenu- 
ously combated, the march of plutocracy has been 
onward, until to-day nothing opposes its resistless sway 
except the mutterings of revolution which are ominous 
of a violent reorganization of society. 

The regret at letting this opportunity slip is ag- 
gravated by the knowledge we of our day have, that 
our world was on the eve of the most remarkable ex- 
pansion of material wealth known to men. Within 
a few years the force of steam was utilized and the 
cotton gin invented ; and witlim three generations all 
the great discoveries and inventions have occurred by 
which the energies of men in the XlXth century have 



188 THE FORMATION OF PARTIES. 

been concentrated upon material development. To 
him who regards the Hamiltonian policy as a fortui- 
tous as well as a wise policy, and finds in it the special 
providence which was to devote this youthful continent 
to " the spirit of the nineteenth century," nothing can 
be said. But he who regards man as a creature com- 
pounded of good as well as bad, who looks upon gov- 
ernment as a science still susceptible to development, 
and who hopes that every rising sun will bring the 
world nearer to a time when evil will not be an 
acknowledged constituent of administration, must bit- 
terly regret that when the opportunity existed, the 
man to take advantage of it was not in power. It is 
sad to think that the experiment was handed over to 
the mobs of the most excitable people, and of the one 
least subject to self-control since the days of the Athe- 
nians : yet, when we see what the French Revolution 
has done for the human race, what infinite good might 
have been expected from a fair trial by an anghcan 
representative-democracy ! Even had the experiment 
proved disappointing, our condition could have been 
no worse than it had been ; the resources of a new 
country, multiplied by invention and discovery, might 
have mitigated the evils of failure, and men the world 
over would have been in possession of that rarest and 
richest political wealth, knowledge of the practical 
working of a new idea. 



CHAPTER X. 

CONSTITUTIONAL LEGISLATION. 

The Ordinance of 17S7 — The Kentucky and Virginia Resolutions — 
The Missouri Compromise. 

Maryland instructed her delegates, in 1778, not 
to agree to the Confederation, unless the northwestern 
territory " should be considered as a common prop- 
erty, subject to be parceled out by Congress into free, 
convenient, and indej)endent governments, in such 
manner and at such times as the wisdom of that as- 
sembly shall hereafter direct." Inasmuch as this 
territory was the subject of divers claims, especially 
of that of Virginia, which embraced nearly all the 
land, and the claimants were not disposed to surren- 
der these claims, the Articles of Confederation re- 
mained unadopted until the first of March, 1781 ; 
upon this day, Maryland ratified the Articles. She 
did so because New York had resigned her dubious 
claim in favor of " such of the United States as shall 
become members of the federal alliance ; " Connecti- 
cut had resigned her claim ; Virginia had offered con- 
ditionally to cede the one she had to the territory 
northwest of the Ohio River ; and because Congress 
had showed itself ready to complete the programme 
by the declaration that the said territories should be 
" formed into distinct republican states, which shoidd 
become members of the Federal Union, and have the 



190 CONSTITUTIONAL LEGISLATION. 

same rights of sovereignty, freedom, and indepen- 
dence as the other states." ^ 

Pressure had to be brought to bear upon Virginia, 
whose conditional offer to cede had not been accepted 
by Congress, but at last she yielded,^ and the vast re- 
gions known as " the Northwest Territory " fell luider 
the disposition of the United States.^ Jefferson, 
shortly afterward, as chairman of a special committee, 
reported a plan for the temporary government of all 
the western territory including the Northwest, and 
this was one of the last official acts performed by him 
before setting sail as minister to France. This plan, 
which contemplated the future erection of sixteen 
states, included the following provisions : that " after 
the year 1800 there shall be neither slavery nor in- 
voluntary servitude in any of the said states other 
than in the punishment of crimes, whereof the party 
shall have been duly convicted." This prospective 
j)rohibition was to cover all the states, as well those 
south of the Ohio River as those north of it. The 
six northern states voted for this prohibition : North 
Carolina was divided ; Maryland, Virginia, and South 
Carolina voted against it, and New Jersey, Delaware, 
and Georgia were unrepresented. One state more in 
its favor, and the prohibition of slavery on the eastern 
slope of the Valley of the Mississippi that was in 
possession of the United States would have been 
effected. As it stood, the proviso was lost for lack 

1 October 10, 1780 ; Journals of Congress, III, 535, 282. 

2 October 20, 1783. 

^ Hening's Statutes, 564-7; Congress accepted, March 1, 1784. 
Massachusetts ceded, April 19, 1785, and Congress accepted Connect- 
icut's cession. May 20, 1786, but Connecticut held on to the Western 
Reserve until 1800. South Carolina ceded in 1787. 



ORDINANCE OF 1787. 191 

of the seven votes requisite to a majority. Tlie rest 
of the report was adopted. 

In 1785 Rufus King, of Massachusetts, again pre- 
sented Jefferson's prohibition, with the omission of 
the words " after the year 1800," and with a substi- 
tution of the words " jiersonally guilty " for " duly 
convicted." This made the prohibition of slavery 
immediate instead of prospective. The resolution as 
amended was sent to a committee, and thence was 
favorably reported by a vote of eight states to three, 
but it was not acted ujion. 

Towards the close of the following year, the gov- 
ernment of the territory was again taken up by Con- 
gress, but the scope of the committee was limited to 
the northwestern portion. It was this committee 
which, with Nathan Dane as Chairman, framed the 
famous " Ordinance of 1787." ^ Jefferson's prohibi- 
tion, made immediate instead of prospective, was 
" agreed to without opposition," says Dane, who ex- 
pressed his surprise in a letter to King. There 
were three reasons for this : one was that the pro- 
hibition would affect one half only of the territory 
embraced in Jefferson's proviso, and this half the 
northern one, which lay in latitudes already demon- 
strated by experience to be uncongenial to the main- 
tenance of slavery. The South really gave up no- 
thing. Another reason was, the accompaniment of a 
fugitive slave clause (the first one in our history) to 
the prohibition. The last reason was one which had 
a cogent effect upon a Congress which legislated con- 
stantly in sight of an empty treasury ; it was that the 
Ohio Land Company stood ready to take five million 

1 Adopted, July 13, 1787- 



192 CONSTITUTIONAL LEGISLATION. 

acres of land in Ohio at a valuation, if it should be 
organized into a free territory. The bargain was 
struck, and thus was the Northwest reserved for free 
states only.i The organization of the territory south 
of the Ohio River was made under an agreement with 
the ceding states that slavery should not be j)ro- 
hibited within its limits. 

The effect of the provisions of this Ordinance in 
respect to the prohibition of slavery, to freedom of 
religion, and to the encouragement of education, and 
the guarantee of the political rights of the individual, 
and the future membership of the projected states in 
the Union, was amazing, and makes the most impres- 
sive chapter in the political history of the United 
States. Two distinct forms of civilization and of 
society grew up alongside of each other, separated 
only by a thread, the Ohio River, and they were 
object-lessons ever present to the scrutiny of man- 
kind. They presented the striking contrast between 
society founded upon free labor and society founded 
upon slave labor. Two social forms were wide apart, 
and were hopelessly incompatible with each other. 

The Alien and Sedition Laws which were passed by 
Congress in 1798, during the administration of Jolui 
Adams, afforded the text upon which the Kentucky 
and Virginia resolutions were written. These meas- 
ures were regarded throughout the country as sus- 
taining the constant assertion of Jefferson that, unless 
the action of Congress was restricted to the powers 

1 For an excellent r^sura^ of the subject, see Alexander Johnson's 
article, entitled "Ordinance of 17S7," in Lalor's Cyclopagdia of Po- 
litical Science, etc. ; and for bibliography, see references appended to 
this article. 



KENTUCKY AND VIRGINIA RESOLUTIONS. 193 

enumerated in the Constitution, no protection to per- 
sonal and civil rights would remain, except that which 
lay in the reserved powers of the several states. Seiz- 
ing the opportunity presented by the exasperating 
execution of these laws, Jefferson and Madison under- 
took to define, through state legislative action, the 
nature of the federal government and the relations 
borne to it by the states, and to pomt ovit the exercise 
of a loose construction of the Constitution as a fit and 
necessary subject for correction, masmuch as it would 
inevitably tend to change the existing constitutional 
government to something which would be " at best a 
mixed monarchy." 

The attempt to arouse the fears of the states and to 
call forth a general legislative protest, if not interven- 
tion, against the encroachments of the federal govern- 
ment, proved futile, but the resolutions did not fail 
to excite popular apj)rehension, and to augment the 
ranks of the strict-constructionists. 

The position taken in the resolutions was : 1. That 
the general government had its origin in a compact be- 
tween the several states, under the style and title of 
a Constitution for the United States ; and that to this 
compact each state acceded as a state, and is an inte- 
gral party. 2. That these several states had consti- 
tuted this general government for special purposes 
only. 3. That they had delegated to that govern- 
ment certain definite powers, reserving, each state to 
itself, the residuary mass to their own seK-govern- 
ment. Therefore, 4, whenever the general govern- 
ment assumes undelegated powers, its acts are un- 
authoritative, void, and of no force. And, 5, that 
the general government, created by this compact, was 



194 CONSTITUTIONAL LEGISLATION. 

not made the exclusive or final judge of the extent 
of the i^owers delegated to itself, since that would 
have made its discretion, and not the Constitution, 
the measure of its powers ; but that, as in all other 
cases of compact among parties having no judge, each 
j)arty has an equal right to judge for itself, as well of 
infractions as of the mode and measure of redress. 

Such were the views of the nature of the federal 
government and the rights of the individual states set 
forth in the first of the Kentucky resolutions. The 
Virginia resolutions took the same view of the origin 
of the general government, viz. : that it was a result of 
a compact to which the states alone ^ were parties, and 
they united with the Kentucky resolutions in depreca- 
tion of broad or loose construction of the Constitution, 
and in censure of the Alien and Sedition Laws. The 
transmission of copies of these resolutions directly to 
the governors and legislatures of the other states, as 
well as to the Virginia senators and representatives in 
Congress, was enjoined ; whereas the Kentucky reso- 
lutions directed their transmission merely to the Ken- 
tucky senators and representatives for the purpose of 
securing a repeal of the obnoxious Alien and Sedition 
Laws. 

The Kentucky resolutions had expresssd the hope 
that " the co-states, recurring to their natural rights 
not made federal, will concur in declaring these [Alien 
and Sedition Laws] void and of no force, and will each 
unite with this commonwealth in requesting their re- 
peal at the next session of Congress." The Virginia 

^ The word " alone " was stricken out, as well as the words " null, 
void, and of no force or effect." This was done in order to obviate 
tlie objection to the resolutions, that they contained declarations ' ' not 
of opinion but of fact." 



THE RESOLUTION OF 1799. 195 

resolutions, on their part, declared " tliat in case of a 
deliberate, palpable, and dangerous exercise of their 
powers, not granted by the said compact, the states, 
which are parties thereto, have the right and are in 
duty bound to interpose for arresting the progress of 
the evil, and for maintaining, within their respective 
limits, the authorities, rights, and liberties appertain- 
ing to them." 

This assertion contains the doctrine, that the states 
have a right to judge for themselves, whether the 
exercise of powers not granted by the compact is so 
deliberate, palpable, and dangerous as to warrant in- 
terposition on their part, or no. A resolution, under- 
stood to be by a hand other than the one which had 
written the text of 1798, was added to the Kentvicky 
resolution, in the follomng year (1799), and this as- 
serted " that the several states which formed that in- 
strument, being sovereign and independent, have the 
unquestionable right to judge of the infraction ; that 
a nullification, by those sovereignties, of all unauthor- 
ized acts, done under color of that instrmnent, is the 
rightful remedy ; that, althougli tliis commonwealth, 
as a party to the federal compact, will bow to the laws 
of the Union, yet it does at the same time declare, 
that it will not now or ever hereafter cease to oppose, 
in a constitutional manner, every attempt, at what 
quarter soever offered, to violate that compact, and 
finally, in order that no pretext or argument may be 
drawn from a supposed acquiescence in the constitu- 
tionality of those laws, and be thereby used as prece- 
dents for similar further violations of the federal 
compact, this commonwealth does now enter against 
them its solemn protest." In this resolution the right 



196 CONSTITUTIONAL LEGISLATION. 

to judge of the infraction is asserted to lie in " tlie sev- 
eral states," whereas in the first of the resolutions of 
1798, it was declared that ^ each party [to the compact] 
has an equal right to judge for itself." The wording 
in the first resolution is not so clear, bnt in later times 
it was subjected to the assertion, notably by Webster 
in 1830, that Jefferson had committed the solecism of 
making his several states enter into a compact with a 
government which was a creature of this very compact ; 
but this was a palpable misconstruction of terms. 

The passage of these resolntions by the respective 
legislatures, and their transmission to Congress and to 
the other states, created a profound impression upon 
the people everywhere. There was no mistaking their 
purpose ; it was, to formulate a creed for the republi- 
can-democratic party, ^ and to place over against the 
doctrine of incidental, auxiliary, or latent powers the 
enumerated powers ; to meet the assertion of complete 
sovereignty in the general government with the rejoin- 
der that exercise of powers which were delegated was 
to be accounted for, and that exercise of powers not 
specifically enumerated was usurpation. The federal 
and decentralizing element in the Constitution had 
turned upon the national and centralizing element, 
and the two political forces were now arrayed against 
each other. The general government was declared, 
once for all, to have had its origin in a compact of 
equals, above whom there was no superior to whom 
appeals could be made upon disagreement among 

1 At the time of these resolutions, the " party platform " had not 
been devised, and as there were no " party conventions " to give au- 
thoritative expression to party doctrine, recourse was had iu several 
instances to the resolutions of state legislatures. 



THE CONSTITUTION A COMPACT. 197 

themselves ; nor upon a question of infraction of del- 
egated power did it behoove the delegate to question 
the authority of the grant of powers ; nor upon a 
question of the exercise of vmdelegated powers were 
there any judges but those in whom the sole right 
to those powers remained. 

Much labor has been expended upon the task of ex- 
plaining away the word "compact : " but, in view of 
the fact that the word was made use of in the resolu- 
tions only eleven years after the Constitutional Con- 
vention had sat ; that the author of the Virginia reso- 
lutions had been a member of that Convention, and 
that there is notliing to show that a change in the 
meaning of so technical and weU-defined a word as 
this is had taken place, it is to be presumed that the 
word " compact " was used by the authors of the reso- 
lutions in 1798 in the same sense in which it had 
been used by them in 1787. Now, in 1787 and 1788, 
« the term " compact " was in general use in referring 
to the Constitution, as " The Federalist " and the rat- 
ifications themselves of the instrument clearly show ; 
for in the ratification of Massachusetts, the Constitu- 
tion was said to be " an explicit and solemn compact," 
and New Hampshire uses the same words. In every 
one of the debates of the state conventions called to 
ratify or reject the Constitution, the word was used 
freely in application to this instrument, and in the 
same sense as that in which it is employed in the res- 
olutions, and no one was called to account for doing 
so ; and in the correspondence and publications of 
the friends or the opponents of this frame of govern- 
ment it was applied in the same way, as is to be seen 
in the letters and other writings of Washington, Mad- 



198 CONSTITUTIONAL LEGISLATION. 

ison, Hamilton, Morris, Rufus King, Ellswortli, and 
Randolph. Edmund Pendleton, President of the Vir- 
ginia ratifying Convention, went so far as to assert : 
" This is the only government founded in real com- 
pact." Daniel Webster, then, was surely wrong in 
saying of Calhoun that " he introduces a new word of 
his own, viz. : Compact, as importing the principal 
idea, and designed to play the principal j)art." 

Not to dwell upon an interpretation of the word 
" compact," or upon the objections to it in character- 
izing the Constitution, the spirit and meaning (so 
much and so long disputed) of the resolutions them- 
selves are more to the purpose. For, although these 
tenets failed to call forth the sympathetic response of 
the various legislatures, they drew to themselves the 
fealty of the strict-constructionists, who were then on 
the eve of sweepmg the latitudinarians from the po- 
litical field ; and such stupendous consequences have 
flowed from these resolutions as sources of doctrine, 
that it is requisite to have as clear a notion of their 
spirit and meaning as can be gathered from a brief 
summary of the textual expressions, and of the argu- 
ments for and against them made by their advocates 
and opponents and by contending expounders of the 
Constitution. 

In respect, then, to the spirit and intentions of these 
resolutions, the question arises, What purpose had their 
authors in view, when they promulgated them and 
called upon the other states to make them their own ? 
Did they mean that the states should go to the length 
of blocking completely the action of the federal gov- 
ernment ? Did they intend to imply forcible resist- 
ance of a state to objectionable laws ? 



FIVE MODES OF REDRESS. 199 

Several ways by which the mass of right residuary 
in the states could act in case of infraction suggest 
themselves : 1. By mere protest, or by petition, on 
the part of the particular governments ; in which 
cases correction of the evil woidd be left to the action 
of pubKc opinion. 2. By direct request that Con- 
gress repeal the infracting laws. 3. By separate pro- 
test of the several states. 4. By separate request of 
these states for repeal, and, 5, by action of a conven- 
tion, whose corrective amenchnents to the Constitu- 
tion would be ratified by the requisite number of 
states. The first and third of these methods would 
be indirect m their action, and would refer the correc- 
tion of the evil to the sober judgment of the people ; 
they would rely, too, upon the favorable operation of 
time. The second and fourth methods would be di- 
rect and woidd leave nothing to time ; but no one of 
these four modes of redress would indicate a disposi- 
tion unfriendly to the general government, for they 
would be strictly within the provision of the Consti- 
tution relating* to amendments,^ and m compliance 
with the spirit of the article ^ recognizing the right of 
the people peaceably to assemble and to petition the 
government for a redress of grievances, and of the 
article ^ reserving to the states powers not delegated. 
These methods, then, would be constitutional and 
therefore unobjectionable, and would accord with the 
professions of the resolutions, that the state " consid- 
ers union for specified national purposes to be friendly 
to the peace, happiness, and prosperity of all the 

1 Article V. 

2 Article VIII. ; the first article of the amendments. 

3 Article X. 



200 CONSTITUTIONAL LEGISLATION. 

states ; " that, " faithful to the compact, according to 
the plain intent and meaning in which it was under- 
stood and acceded to by the several parties, it ia sin- 
cerely anxious for its preservation ; " ^ that it has " a 
firm resolution to maintain and defend the Constitu- 
tion of the United States against every aggression 
either foreign or domestic, and that it will support the 
government of the United States in all measures 
warranted by the [Constitution] ; " that it " most sol- 
emnly declares a warm attaclunent to the Union of 
the states, to maintain which it pledges its powers, 
and that for this end, it is its duty to watch over and 
oppose every infraction of those principles which con- 
stitute the only basis of that Union." ^ The Virginia 
resolutions took particular pains to assert "the truest 
anxiety for establishing and perpetuating the union of 
all, and the most scrupulous fidelity to that Consti- 
tution, which is the pledge of mutual friendship and 
the instrument of mutual happiness," and even the ar- 
ticle of 1799 appended to the Kentucky resolutions 
acknowledges " that this commonwealth, as a party 
to the federal compact, will bow to the laws of the 
Union." 

Internal evidence certainly displays a right spirit 
within the resolutions ; for they breathe a warm at- 
tachment to the Union, the most scrupulous fidelity to 
the Constitution, and a determination to maintain and 
defend the government. No fault, then, can be found 
with the spirit of the resolutions, and none could ever 
have been found, were it not that, in the eighth arti- 
cle of the Kentucky resolutions, it was declared " that 

1 Kentucky resolutions, article 8. 
^ Virginia resolutions : preamble. 



REDRESS WITHIN THE CONSTITUTION. 201 

every state has a natural right in cases not within the 
compact (casus no n foederis^ to nullify of their own 
authority all assumptions of power by others within 
their limits," and that a " nullification by those sover- 
eignties [the several states] of all unauthorized acts, 
done under color of that instrument [the Constitution 
of the United States] is the rightful remedy." The 
word " every " followed by the word " their " threw a 
shade of ambiguity over this clause sufficient to draw 
upon it the reproach of maintaining that a single 
state had the right to nullify the common laws of all. 
But the Viro^inia resolutions, on their part, made use . 
of the plural term " states," and as the rule of the 
majority is inherent in the federal system, the conclu- 
sion is irresistible that Virginia intended the inter- 
position which she reconunended to be that of a ma- 
jority of the states : and, further, inasmuch as the 
Constitution provides for its own amendment on the 
application of two thirds of the states, it is most prob- 
able that this constitutional method of " arresting the 
progress of the evil " was the only one she had in 
view. Such being the case, an appeal to public opin- 
ion with the design of uniting three fourths of the 
states in ratification of an effective amendment to the _i^ 
Constitution was all that was intended by Virginia.^ '^^^ 
The facts that the Virginia resolutions do not contain 
the words " nullify," " nidlification," or any of their 
equivalents ; that the state confines herself to express- 
ing the confidence that her sister states will concur 
with her in " declaring " that the acts complained of 
were miconstitutional ; that " the necessary and proper 

1 Rives, of Virginia, during the debate in 1833 on Calhoun's nulli- 
fication resolutions. 



202 CONSTITUTIONAL LEGISLATION. 

measures will be taken by each for cooperating with 
[her], in maintaining unimpaired the authorities, 
rights, and liberties, reserved to the states respec- 
tively or to the people ; " and that, in the mean time, 
she contents herself with transmitting copies of the 
resolutions to the executive authority of each of the 
other states, with a request that the same may be 
conununicated to the legislature thereof, and that a 
copy be furnished to each of her senators and repre- 
sentatives in Congress, — all these facts are in clear 
support of this conclusion. These resolutions were 
expressly declaratory., and proceeding from the legis- 
lature only, which was not even a party to the Con- 
stitution, could be declaratory of opinion only.i No- 
where was the right set forth in the resolutions, nor 
broached in the debates of which they were the sub- 
ject, that a state might resist the operation of the 
federal laws in any case in which it might deem an 
act to exceed the limits of the Constitution ; force is 
not hinted, nor is there a suspicion of nullification. 

The same remarks may be made of the Kentucky 
resolutions of 1798 ; for the clause asserting the right 
of " every " state to nullify obnoxious acts of the gen- 
eral government, and prescribing " nullification " as 
the rightfvd remedy, does not belong to the resolu- 
tions of 1798, but to the addition made in 1799.2 
Thomas Jefferson was the author of the former, and, 
said Madison in 1831, " that he ever asserted a right 
in a single state to arrest the execution of an act of 
Congress — the arrest to be valid and permanent, 
unless reversed by three fourths of the states — is 

1 Madison to Robertson, March 27, 1831. 
- Madison to Cabell, May 31, 1830. 



JEFFERSON NO NULLIFIER. 203 

countenanced by nothing known to have been said or 
done by him. In his letter to Major Cartwright, he 
refers to a convention as a peaceable remedy for con- 
flicting clamis of power in our compound government ; 
but whether he alluded to a convention as prescribed 
by the Constitution, or brought about by any other 
mode, his respect for the will of the majorities, as the 
vital principle of republican government, makes it 
certain that he could not have meant a convention in 
which a mmority was to prevail either in amending 
or expounding the Constitution." ^ Directly to the 
point, moreover, is Jefferson's own testimony in a 
letter to Madison,^ in 1825, which suggests the pas- 
sage by the Virginia legislature of a new set of resolu- 
tions, having for its subject the unconstitutionality 
of the federal government meddling with internal 
improvements. Regarding opposition as futile, the 
author seeks safety in flying before the storm, and in 
constitutionalizing by an amendment " the acts which 
we have declared to be usurpations ; " but he prom- 
ises for the state, and enjoins upon its citizens, 
acquiescence " until the legislature of the United 
States shall otherwise and ultunately decide." 

Thus do the terms themselves of the Kentucky and 
Virginia resolutions of 1798 forbid the inference 
that force, on the part of the states or of any of 

^ Madison to Townsend, December 18, 1831 ; and see Benton, 
Thirty Years' View, I, chap. Ixxxvii, pp. 347-360, for extracts of 
debate on the resolutions in the legislature of Virginia, and for Madi- 
son's explanations. See also Madison's Report to the Virginia Legis- 
lature of 1799-1800, commonly called "the Report of 1800;" Elliot's 
Debates, 528 et seq. ; 2 Benton's Debates of Congress, 373 ; Nieolson's 
Debates in the Virginia Assembly of 1798 ; Stephens' War between 
the states, 441 et seq. ; Story's Commentaries, sect. 1289 n. 

2 December 24, 1825. 



204 CONSTITUTIONAL LEGISLATION. 

them, to abrogate a law of the United States, or to 
nullify its operation, was within their purview. The 
right of revolution, even, was not referred to nor 
hinted at ; but tliis right, which is a sacred one and 
which is not to be gainsaid, is presumably ever in 
contemplation of the freeman, and it is referred to 
here as something which might well have been alluded 
to under stress of the circumstances which provoked 
the resolutions. In short, to adopt the succinct sum- 
mary of Benton,! their intention was : 1. By a solemn 
declaration of opinion, calculated to operate on public 
sentiment, to induce the cooperation of other states 
in like declarations. 2. To make a direct representa- 
tion to Congress, with a view to obtain a repeal of the 
acts complained of. 3. To represent to their respect- 
ive senators their wish that two thirds thereof would 
propose an explanatory amendment to the Constitu- 
tion. 4. By the concurrence of two thirds of the 
states, to cause Congress to call a convention for the 
same object. 

It was the abuse of the resolutions of 1798 which 
led to after-woes of the republic ; or rather, it was 
the use of that bird of ill-omen, the Kentucky resolu- 
tion of 1799, whereby misconstruction was put upon 
all the resolutions, and they were made to appear as 
sources of false doctrine. Inasmuch as the nullifica- 
tion ordinance of South Carolina in 1832 is to be 
attributed to this abuse, and in the great debate 
which followed, the term " compact," and the princi- 
ples underlying the Constitution and the resolutions, 
received exposition at the hands of such expounders 
as Calhoun and Webster, it may be well to anticipate 

^ Thirty Years' View, i, 353. 



CREED OF THE DEMOCRATIC PARTY. 205 

a stage of history, and ascertain wliat view the gener- 
ation succeeding that of Madison and Jefferson took 
of the resokitions. Both of the great parties involved 
in the discussion laid the doctrine of nuUification at 
the doors of the Kentucky and Virginia legislatures ; 
one of these parties asserting that the truth was not 
in them, and the other affirming that the truth, as 
ascertained by itself, was there to be found. The 
judgment of the third generation is, unquestionably, 
that both of these assertions are untrue : that the res- 
olutions of 1798 cannot be held accountable for the 
doctrines of nidlification and of secession, nor that 
they presented a false (though not unbiassed) exposi- 
tion of the rights of the states. 

The doctrines enunciated in these resolutions became 
the creed of what in later days was known as the 
Democratic party, and were at once universally ac- 
cepted throughout the South or state-rights section of 
the United States. 

The element of nationality introduced into the Con- 
stitution of 1788 became aggressive as soon as the new 
government went into operation, and its consolidating 
tendency called forth the resistance of the strict-con- 
structionists in defence of the states whose rigfhts it 
threatened to absorb. The state-rights party was the 
antityjje of the national party, and it sought to pre- 
serve the equilibrium between the states and the gen- 
eral government. To do this, it insisted that the term 
" state " meant the people composing the thirteen 
political societies, in their highest sovereign capacity, 
because in this sense the Constitution was submitted 
to the " states," in this sense the " states " ratified it, 
and in this sense of the term " states " they are conse- 



206 CONSTITUTIONAL LEGISLATION. 

quently parties to the compact from wliicli tlie powers 
of tlie federal government result : that the compact 
ought to have the interpretation plainly intended by 
the parties to it, and that it ought to have the execu- 
tion and effect intended by them ; for, 'if the powers 
granted be valid, it is solely because they are granted, 
and if the granted powers are valid, because granted, 
all other powers not granted must not be valid. The 
states, then, being parties to the constitutional compact 
and in their sovereign capacity, it follows of necessity 
that there can be no tribunal above their authority, to 
decide in the last resort whether the compact made 
by them be violated ; and, consequently, that, as the 
parties to it, they must themselves decide in the last 
resort such questions as may be of sufficient magni- 
tude to require their interposition. In the case of an 
intimate and constitutional union, like that of the 
United States, it is evident that the interposition of 
the parties, in their sovereign capacity, can be called 
for by occasions only, deeply and essentially affecting 
the vital principles of their political system.^ 

Madison, in expressing these views, wished that the 
perfection of language achnitted less diversity in the 
signification of the word " states," but took comfort 
in the thought that little inconvenience was produced 
by it, where the true sense can be collected with cer- 
tainty from the different applications. In this in- 
stance, it was clear to him that the parties to the 
compact meant, by the word " state," the people com- 
posmg that political society. The commentator of to- 
day must regret that the plural term " peoples " was 
neither in general nor special use by English-speaking 

^ Madison's Report on the Virginia Resolutions. 



THE THIRTEEN PEOPLES. 207 

writers of that period, for, if the term " states " meant 
the people of the several states, much of the confusion 
resulting from the attempt to ascertain who the parties 
to the compact were, would have been obviated by the 
employment of the term " peoj)les." The contention 
itself, for example, over the construction of the ex- 
pression in the preamble of the Constitution, " We 
the people of the United States," would not have 
occurred, for if " people " here meant " peoples," the 
interpretation that derives the Constitution from the 
act of a nation would have had no foundation, and 
therefore could not have taken place. 

Contemporaneous evidence of intention by the par- 
ties themselves is the strongest external evidence 
possible for a compact, and this evidence is to be 
found in the ratifications of the Constitution by the 
several states. These ratifications were all made by 
the " delegates " or " deputies " of each state, " in the 
name of the people " of that state, except in the cases 
of Georgia and Delaware, by whom the equivalent, 
" for and in behalf of ourselves and our constituents," 
was used, and in the instance of North Carolina, which 
employed the particularizing term, " in behalf of the 
freemen, citizens and inhabitants of North Carolina : " 
so that there can be no question that the people of 
each of these " political societies " ratified the Consti- 
tution, and was a several party to that instrument. 
Nor can it be doubted that, when grouped together in 
one term, they were tliirteen peoples. 

That this fact was recognized universally at the 
time of ratification, and continued to be so, until the 
expansion of the principles of nationality called it 
into question, is, from the evidence afforded by the 



208 CONSTITUTIONAL LEGISLATION. 

action of the several states in amending the Constitu- 
tion, from the language used upon the floor of Con- 
gress by senators and representatives, from that used 
by popular speakers and by the press, and particu- 
larly from that of state papers and of the leading 
expounders of the Constitution in debate and in cor- 
respondence, private, official, or professional, equally 
indisputable. 

The retirement of slavery to the country south of 
Mason and Dixon's line and the Ohio River, and the 
preponderating development of population and mate- 
rial strength in the country north of this line of de- 
limitation, divided the United States into two sections, 
and entailed upon them all the evils which sectional- 
ism can inflict. It needs no demonstration that, 
where different peoples unite in a common form of 
government, anytliing inconsistent with the preserva- 
tion of their unity is dangerous to their welfare, and 
that sectionalism, or the conflict between interests 
which are peculiar to sections of territory, is of such 
a nature. One of the evils, and the main and most 
virulent one which sectionalism in the United States 
has developed, has been the sectionalizing as well of 
social and political principles as of material interests. 

This paradoxical effect on principles, which are im- 
pulses supposed to be general in their nature, is due 
to the fact that principles are the sources of rules of 
action, and inasmuch as the action of political bod- 
ies is governed solely by their interests, the motives of 
action, principles, respond to the interests of a locality 
and become sectionalized with it. If there be any 
doubt of this being a vital aud active force in politics, 
this doubt will be dispelled by the most cursory 



SECTIONALISM. 209 

glance at the dealings of the great powers with each 
other, or, to come nearer home, at the votes in the 
Congress of the United States affecting the interests 
of localities ; notably those npon the tariff qnestion, 
which has invariably divided parties. There never 
has been a time since this question came before Con- 
gress, that members of a party which has strenuously 
maintained that any tariff, except for revenue only, is 
unconstitutional, have not been found voting for a 
protective tariff ; nor, on the other hand, that mem- 
bers of a party of which " protection " is a cardinal 
doctrine have not strenuously opposed it. A map of 
the country, shaded according to the votes for and 
against a tariff, woidd, especially in these later days of 
mineral and conunercial development, appear spotted 
with areas corresponding to the votes in the general 
legislature, and these areas would consequently indi- 
cate the " principles " which had their origin in the 
interests of these localities. 

The bending of " oiu' notions to our dealing " has 
never been exemplified on a greater scale, or in a 
clearer manner, than it was in the course run by sec- 
tionalism in this country. So long as the chief inter- 
est of the North lay in navigation and agriculture, an 
interest which was not in competition with that of any 
other section, her principles were general, and the 
Constitution was a " compact " to which the several 
states had " acceded " in their capacity of " sover- 
eignties ; " there was no tribunal of appeal for the 
parties to this compact, and the assertions of Virginia 
and New York in their ratifications of the Constitu- 
tion, that the jaowers granted in this instrument, being 
derived from the people, might be resumed by them, 



210 CONSTITUTIONAL LEGISLATION. 

whensoever the same shall be perverted to their in- 
jury or oj^pression, was unquestioned. 

Time, however, wrought its changes. The policy 
of Alexander Hamilton had proved to be favorable to 
that part of the country where population was con- 
centrated, but it had not been favorable where popu- 
lation was dispersed. It accumulated money in the 
large cities, making them financial centres ; the South 
had no large cities. It fostered the commercial 
classes ; but, from the constitution of southern so- 
ciety, the commercial class of the South was insignifi- 
cant, and, to all appearances, would remain such. It 
undertook to create a manufacturing class, and suc- 
ceeded in doing so ; but the Southerners were not a 
manufacturmg people, for slave labor was not skilled 
labor, nor could it be made skilled. Moreover, immi- 
gration followed northern latitudes in its progress 
west, and the South thus lacked this augmentation of 
popidation, while the balance of representation was 
inclining against it from day to day. It is not sur- 
prising that, as the material importance of the South 
waned and it began to experience trepidation con- 
cerning its political future, the self-importance of the 
North rose, and that it manifested a disjjosition to 
aggrandize wealth and power even at the expense of 
the South : and this it did by obtaining an adjust- 
ment of taxation, the inequality of which was favor- 
able to it, by bounties to navigation and fishing, and 
above all by protective tariffs. The South was the 
market of the North : and a tariff for protection 
transformed New England and Pennsylvania into 
manufacturing communities whose product was to be 
taken by the South ; for, owing to the lack of a mer- 



A SENSE OF GRIEVANCE. 211 

chant service that should bring foreign productions to 
her doors, the South would be compelled to buy of the 
North at the latter's ^irices. 

Such was the view taken by the South of her eco- 
nomical relations to the North. The forecast she 
made of her fortunes was not a cheering one, nor was 
it brightened by the reflection that, in ceding the 
Northwest Territory to the United States, she had 
increased northern territory, and had provided homes 
for the immigrants who were rapidly strengthening 
her rival's ranks. She recalled, too, the debates in 
the Constitutional Convention which ended, as she 
conceived, in yielding too much to the North on the 
questions of representation and taxation ; she re- 
gretted that she had not made a more determined 
stand against committing so unreservedly the regida- 
tion of commerce to the federal government, and she 
had South Carolina to remind her of the willingness 
of New England to allow the claim of right in Spain 
to control the navigation of the lower Mississippi and 
to close the mouths of the river, — now that the North 
had gained possession of the Northwest, it was ready 
to look on with indifference while the Southwest was 
rendered valueless to the South. These proofs, as the 
South chose to consider them, of northern rapacity, 
and of a settled policy on the part of the North to 
look to its own interest regardless of the interests of 
others, confirmed the people of that section in the 
unfavorable opinion which they had entertained of 
the northern people for a period long before they 
had combined with them in resistance to the mother- 
country. Rightly or wrongly, the South started out 
in its federal Hfe with a sense of grievance acquired 



212 CONSTITUTIONAL LEGISLATION. 

from its political connection with its neighbors, and 
with the ancient unsocial disposition towards them 
greatly aggravated : but that it could not lay upon 
the North the burden of measures which in later days 
it denounced as unfair and unconstitutional is shown 
by the facts, that the obnoxious bank was reinstated 
by the aid of southern votes and the approval of a 
southern President, and that the tariff of 1816 re- 
ceived southern support and the quahfied approbation 
of John C. Calhoun, the Argus of the South. 

The North, it need hardly be said, did not admit 
that this sense of grievance had any foundation ; for, 
on its part, it had carried away from the Convention 
the feeling that the South had claimed too much in 
the settlement of the ratio of representation and tax- 
ation, and it retorted that the votes of the South, 
years after the bank and the protective systems had 
had a trial, afforded convincive proof that these meas- 
ures had not been regarded by that section as unfa- 
vorable to its interests, and that, consequently, they 
were to be accepted as conducive to the general wel- 
fare ; and it pointed to the southern votes on the sub- 
ject of naturalization as evidence that the incoming 
tide of immigration was as congenial to the political 
interest of the South as it was to the material inter- 
est of the North. The northern people acknowledged 
that the South was a market for their manufactures, 
but they repudiated with abhorrence the notion that 
they regarded the southern states as Great Britain had 
regarded all her colonies, as mere factories for her 
trade, but considered the Union to be a miion of all 
interests, political, social, and economical ; that it was 
a Union of states ; and, such was their fidelity to this 
Union, that they would preserve it at any cost. 



DISSOLUTION A CONSTANT MENACE. 213 

How little weight must be given to the professions 
of loyalty to the Union by either section may be esti- 
mated from the fact that, down to the civil war of 
18G1, there had rarely been a time when the danger 
of dissolution, at the hands of one side or the other, 
was not threatening the Union. Recurring to the 
Spanish claim of right to close the lower Mississippi 
to our navigation (a contention contemporaneous with 
the institution of our present government), one of the 
southern states. South Carolina, made it a reason for 
hesitation in ratifying the Constitution, and very prop- 
erly so. It was not in accordance with propriety, on 
the other hand, that, grievous as the loss of such im- 
portant navigation might be, southern men should call 
for the dissolution of a Union which had been just set 
upon its feet. Nor, as the public utterances and the 
private correspondence of New England leaders dis- 
close, was there reason or propriety in the tlireats of 
dissolution of the general Union, and the formation 
of a particular one, embracing the New England 
states only, merely because the rampant federalism 
of the locality had met with a rebuff. The conduct 
of New England during the Embargo and the War of 
1812 has ever since then received such unsparing con- 
demnation, tliat merely to mention it is to reopen a 
mortifying chapter of our history ; but the constant 
tlireats of dissolution which streamed from southern 
sources on the slavery question were equally reprehen- 
sible with those which had emanated from New Eng- 
land, or with those which the New York Clintonians 
had been guilty of immediately after the adoption of 
the Constitution, In fact, if we leave out " the era 
of good feeling," the sorrowful statement that the 



214 CONSTITUTIONAL LEGISLATION. 

continuance' of the Union was always a matter of 
doubt is proved to be true by every page of our his- 
tory ; and it cannot be denied that, from the begin- 
ning of our united existence, the danger that threat- 
ened it was the irrepressible conflict between the 
ideas and interests of the North and of the South, or, 
in a word, " sectionalism." 

This sectionalism found expression in the different 
methods of construing the Constitution. At first, 
the North, no less than the South, regarded the Con- 
stitution as a compact, which had been acceded to by 
the state-sovereignties as parties, and one which, in 
the absence of a superior who woidd enforce conjunc- 
tion, could be seceded from as it had been acceded to. 
One cannot read the writings of the days which fol- 
lowed the adoption of the Constitution and fail to see 
that secession from the Union, or rather the with- 
drawal and resumption by the states of the delegated 
powers, was the remedy in contemplation of the gen- 
eration which made the Constitution ; that it was re- 
garded as the logical and natural remedy, and as the 
only remedy. There is no discussion of a choice of 
remedies ; it was taken for granted that this remedy 
existed by nature, that it was present to the minds of 
those who framed the compact, and that, should the 
time and occasion for applying it occur, it would be 
resorted to as a matter of course. This general notion 
precluded the idea of coercion, and, in fact, every sug- 
gestion of the kind met with denunciation on all sides. 
It follows, then, that the " interposition of the states," 
asserted in the Virginia resolutions to be a " duty," 
was a mild statement of political obligation, and that 
nullification became universally repudiated afterwards, 



THE NORTH CHANGES FRONT. 215 

not because it was a mere makeshift, but because it 
was, as the anti-Calhoun party in South Carolina held 
it to be, illogical. Either the Constitution was a com- 
pact, or it was the evidence of a surrender of powers : 
secession or submission was the only alternative. 

Whether the change on the part of the North in its 
views of the Constitution was due to a sincere dispo- 
sition to evolve a great and glorious power out of a 
federation, or whether, according to the taunt of the 
South, it was due to motives of interest induced by 
fears of losing its market, the North certainly did ex- 
hibit a remarkable change in the way it construed the 
Constitution. First, it denied that the Constitution 
was a compact : and this denial carried with it a de- 
nial of the right of any state to secede. Second, it 
denied that the several states or peoples had been par- 
ties to the transaction, or that there had been " peo- 
ples " at all, but asserted that the Constitution was 
an ordinance of one whole people of the United States, 
or nation. Third, that the powers enumerated in this 
instrument had not been delegated but surrendered, 
and, moreover, were but outlines to be filled in or to 
be supplemented by others which should be deemed to 
be necessary or even convenient by the nation. 

With the crystallization of these doctrines into a 
creed or " platform," the attitude of the North became 
more and more determined, and she ojDposed through 
the Whig party any pretensions made by the South 
through the Democratic party. She became less and 
less conciliatory, until at length, throwing aside concili- 
ation, she took a positive stand, and avowed her deter- 
mination not to permit further territorial extension of 
slavery. This lent her the appearance of aggression, 



216 CONSTITUTIONAL LEGISLATION. 

and the occasion of it was tlie application of the terri- 
tory of Missouri to be admitted into the Union. 

During its session of 1818, the territorial legislature 
of Missouri made application for authority to frame 
a constitution and establish a state government. A 
bill to effect tliis purpose was introduced into the 
House of Representatives at Washington, and reached 
its consideration in February, 1819, in the course of 
which Mr. Tallmadge, of New York, offered the follow- 
ing proviso : " That the further introduction of slavery 
or involuntary servitude shall be prohibited, except 
for the punishment of crimes, whereof the party shall 
have been duly convicted ; and that all children born 
within the State after the admission thereof shall be 
free at the age of twenty-five years." This amend- 
ment was to be made a condition precedent to admis- 
sion to the Union, and it precipitated a debate whose 
duration and temper disclosed a conflict of principle 
and sentiment which, now dormant now active, in the 
course of time became irrepressible, and at last burst 
forth in a conflict of arms. The reason of this was 
that, as Ruf us King bluntly admitted, it was a struggle 
for political power, and that this was an effort to extir- 
pate slavery from soil where it existed by law ; for 
this territory was a part of the Louisiana Purchase,^ in 

^ Louisiana Purchase : 26th October, ISOo, an act to enable the Pres- 
ident to take possession of the ceded territory passed in the Senate by a 
vote of 26 to 6 and, on the 28th, in the House by 89 to 23. J. Q. Adams 
was among' the stoutest supporters of the bill, passed in the House on 
the 29th, for creation of stock to carry the treaty into effect. Novem- 
ber 30, the Spanish handed the colony over to the French, and, 20th 
December, the French transferred it to the United States. 9th March, 
1804, St. Louis was handed over by the Spaniards to Captain Stod- 
dard, U. S. Army, who had been commissioned to receive it on behalf 



THE LOUISIANA PURCHASE. 217 

wliicli slavery had always existed, and in which it still 
existed under the treaty obligations that were condi- 
tions of its acquisition. Slave territory it had been 
under Spanish and French domination, slave territory 
it had been when acquired by the United States, and 
slave territory it was when it made its application to 
enter the Union as a state. There was nothing there- 
fore in its status at law to provoke oj^position to its 
admission as a slave state, and such opposition must 
have had its motive in something else than opposition 
to unlawful conditions or measures. The most natural 
motive could be found in the qualities of human nature, 
and at once it was attributed to the sense of antago- 
nism to slavery and to the spirit of aggrandizement in 
the North, which sought supremacy of political power 
at the cost of the South. 

There was ground for this alarm in the southern 
states. In 1819, Alabama had been admitted with- 
out the opposition of the free states, although by this 
admission the South gained a preponderance of votes 
in the Senate, for the reason, that, when Georgia 
ceded the territory comprising this state, she made 
certain stipulations in resj)ect to slavery, that carried 
this form of labor along with the soil. But so was 
the soil of which Missouri formed a part, slave territory 
under conditions just as solemn and effective : for the 
treaty under which the soil was acquired stipulated, as 

of France, and 10th March, 1804, Captain Stoddard transferred it to 
the 'United States. The Purchase was at once divided by act of Con- 
gress into two parts : all north of oo° north latitude being- formed 
into a district styled the District of Louisiana, and for judicial and 
administrative purposes being attached to the territory of Indiana. 
March 3, 1805, an act of Congress erected the District into a Territory 
of the first or lowest grade, under the name of the Territory of Loui- 
siana. This detached it from Indiana. 



218 CONSTITUTIONAL LEGISLATION. 

conditions to the transfer of possession, that " Louisi- 
ana, with all its rights and appurtenances as fully and 
in the same manner as they had been acqviired by the 
French Republic from Sjiain,"! should be the thing 
transferred, and Article III, written by Bonaparte him- 
self, further stipulated, that " the inhabitants of the 
ceded territory shall be incorporated in the Union of the 
United States, and admitted as soon as possible, accord- 
ing to the principles of the Federal Constitution, to the 
enjoyment of all the rights, advantages, and immunities 
of citizens of the United States ; and in the mean time 
they shall be maintained and protected in the free 
enjoyment of their liberty, property, and the religion 
which they prefer." If, therefore, the stipulations of 
Georgia in respect to Alabama had been observed, so 
should have been the stipulations of France in respect 
to the Louisiana Purchase, and as no satisfactory re- 
ply could be made to this assertion, it is reasonable as 
well as natural that the restriction insisted upon by 
the states should have a motive other than the good of 
all the states. The blunt admission of Mr. King dis- 
pelled the last doubt, and that the South was justified 
in placing an unfavorable interpretation upon this en- 
forced extirpation of slavery from its borders is made 
clear by the remarks of John Quincy Adams during 
the debate on the admission of the adjoining territory 
of Arkansas. Said he, " She is entitled to admission 
as a slave state ... by virtue of that article in the 
treaty for the acquisition of Louisiana which secures 
to the inhabitants of the ceded territories all the rights, 
privileges, and immunities of the original citizens of 
the United States ; and stipulates for their admission, 

1 Carr's Missouri, 78. 



PREEXISTING SLAVERY. 219 

conformably to that princiijle, in the Union. Louisi- 
ana was pui'chased. as a country wherem slavery was 
the established law of the land. As Congress have 
not j)ower in time of peace to abolish slavery in the 
original states of the Union, they are equally desti- 
tute in those parts of the territory ceded by France to 
the United States under the name of Louisiana, where 
slavery existed at the time of the acquisition. . , . Ar- 
kansas, therefore, comes, and has the right to come, into 
the Union with her slaves and her slave laws. It is 
written in the bond, and, however I may lament that 
it was so written, I must faithfully perform its obliga- 
tions." ^ This was spoken by a northern man, an ex- 
President, and carries with it the force not only of the 
facts, but of an admission. As the circumstances in 
respect to Arkansas were precisely the same as those 
of Missouri, it follows that the legal status of the two 
territories was the same, and that Missouri was en- 
titled under the treaty stipulations, and consequently 
under the laws of the United States, to admission as 
a slave state, just as Louisiana had been admitted 
in 1812, and that the attempts on the part of the 
House of Representatives to force her to put away 
slavery as a condition precedent to her admission was 
an unlawful exertion of power, and one not warranted 
by the Constitution .2 

But the repugnance of the northeastern part of the 
Union to the extension of slavery, which had already 
manifested itself at the time of the acquisition of Loui- 
siana, now assumed an aggressive attitude, and took a 

^ Benton's Abridg-ment of the Debates, vol. xiii, 33. 
^ Carr's Missouri, 144 ; Speech of William Pinkney during the de- 
bate. 



220 CONSTITUTIONAL LEGISLATION. 

determined stand against tlie admission of Missouri as 
a slave state, notwithstanding the perils to the repub- 
lic that lay in a sectional policy, and a policy that was 
not inspired by pvirely political motives, but which 
fovuid its inspiration in moral sentiment. 

To a clear understanding of the scope and effect of 
this opposition, it must be borne in mind that, at the 
time of the application of Missouri for admission to 
the Union, this territory lay on the uttermost western 
part of the republic. Beyond its limits the Spanish 
Possessions stretched towards the west : between it and 
the state of Louisiana on the south was the territory 
now embraced in the state of Arkansas, then occupied 
by savages, while to the north of It extended the re- 
mainder of the Louisiana Purchase. 

The ordinance of 1787 had previously extinguished 
slavery in the northwest portion, and, as climatic con- 
ditions were not favorable to the northward extension 
of slavery, the only area open to the addition of slave 
states was the territory now comprised in the states 
of Arkansas and Missouri. Under the topographical 
conditions of the United States territory at that time, 
the physical limitations of slavery may be considered 
as ascertained, and the further extension of slavery 
beyond those limits was, to all appearance, an impos- 
sibility. It was contemporaneous with the events that 
led to the Missouri Compromise, that these boundaries 
were determined in the treaty with Spain by which 
Florida was acquired. These two events being before 
the public eye at one and the same time, it seems reason- 
able that the anti-slavery sentiment should have found 
a sufficient guaranty against the extension of this In- 
stitution in the fact that there was no room further 



REPUGNANCE TO SLAVERY EXTENSION. 221 

for it to expand. There was still another obstacle to 
slavery extension, and the more formidable that it ex- 
isted in the indisposition of the South itself to enlarge 
its area westward. At that time, John Quincy Adams, 
who, as Secretary of State, was negotiator and osten- 
sible author of the treaty, uttered an expression which 
was much commented upon, but the more it was dis- 
cussed the more enigmatical it remained. It was this : 
" Spain had offered more than we accepted, and she 
dare not deny it." It is now known ^ that Spain had 
embraced in her offer to us the country included in 
the present state of Texas and to the north of it, and 
that we declined this offer. The reason of our doing 
so is to be found in a letter from Monroe to Andrew 
Jackson,^ and is thus set forth : " Having long known 
the repugnance with which the eastern portion of our 
Union, or rath^ some of those who have enjoyed its 
confidence (for I do not think that the people them- 
selves have any interest or wish of that kind), have 
seen its aggrandizement to the West and South, I have 
been decidedly of opinion that we ought to be content 
with Florida for the present, and until the public 
opinion in that quarter shall be reconciled to any fur- 
ther change. I mention these circumstances to show 
you that our difficulties are not with Spain alone, but 
are likewise internal, proceeding from various causes, 
which certain men are prompt to seize and turn to the 
account of their own ambitious views." In like terms 
Monroe wrote to Jefferson, who, unlike Jackson, re- 
mained unmoved by them, and steadfastly though una- 

1 Benton's Thirty Years in the United States Senate, vol. i, chapter 
vi. 

2 May 22, 1820. 



222 CONSTITUTIONAL LEGISLATION. 

vailingly opposed the treaty. Thus it appears that un- 
willingness on the part of southern men to antagonize 
the North was the real reason that led the United 
States to reject the ofEer of territory which, from the 
nature of the case, would become slave states ; and 
indeed, at that time, tliroughout the whole South (un- 
less those states now known as " the Cotton states " 
be excepted), a repugnance to the extension of slavery, 
if not an abiding one, was as general as it was at the 
North, and there is no reason to doubt that, but for 
discordant measures and untoward events, it would 
have proved to be as lasting. 

Having taken its stand upon the Tallmadge amend- 
ment, the House passed the bill as amended ; where- 
upon, when it came before the Senate, the amendment 
was stricken out, and the bill was returned to the 
House in its original shape. Both bodies, however, 
refused to yield, and the bill was lost by the adjourn- 
ment of this Congress sine die. 

Upon the opening of the Sixteenth Congress in De- 
cember, 1819, the admission of Missouri again came 
up, and the action of the House clearly confirmed the 
truth of Mr. King's assertion that the struggle was 
for political power. If the interests of the country 
were henceforth to be governed by sectional consider- 
ations, it is evident that any settlement of the question 
that would annul the preponderance of the South in 
^ the Senate and pave the way to the aggrandizement of 
the northern states would be acceptable to the latter. 
Accordingly, as an offset to the admission of Ala- 
bama, the North presented Maine for admission to the 
Union. This, the most northeastern possession of the 
United States, was not the property of the federal 



MAINE A MAKE-WEIGHT. 223 

Union, but belonged to Massachusetts, one of the 
original states. Cut off from the mother-state by 
the interposition of New Hampshire, tliis region had 
experienced the evils of remoteness, and had long 
indidged in aspirations to sovereignty of its own. 
Massachusetts was one of the strongholds of the Fed- 
eralist party, but the sympathies of the inhabitants of 
Maine were with the Democratic party. The circum- 
stances arising out of the contest over Missouri proved 
to be Maine's opportunity, and prompt advantage was 
taken of it. She made her application, and the Sen- 
ate adroitly took the position that the two measures 
were to be coupled together, and that if Missouri was 
to be admitted with restriction of slavery, Maine should 
not be admitted ; but if Missouri came in without 
such restriction, the admission of Maine should 
promptly follow. This understanding (for the alter- 
native was not openly admitted) prevailed, and the 
sooner that many northern Democrats, for the moment 
swept away from their moorings by the stormy debate 
on the admission of Missouri, were glad to avail them- 
selves of this opportunity to regain their old footing 
in their party. As the admission of Maine would se- 
cure two democratic senators, and thus offset the dis- 
turbance occasioned by the admission of Alabama, 
while the accession to the democratic side of the Sen- 
ate of two senators from Missouri would afford still 
greater democratic preponderance in that body, it is 
clear that the opportunity to regain their lines was 
now offered. So far, partisan necessity was satisfied: 
but the moral element which had intruded itself into 
the Federal council was not satisfied, and it obsti- 
nately demanded compensation for the loss that it 



224 CONSTITUTIONAL LEGISLATION. 

would sustain by the admission of Missouri as a slave 
state. Accordingly, a comnftttee of conference be- 
tween tbe Senate and House was appointed, and after 
a dead-lock to legislation of several weeks, during 
wliicli the storm raged violently, it rejiorted a series 
of measures that have been kno\\^i ever since as the 
Missouri Compromise. 1. The clause prohibiting sla- 
very was stricken from the bill authorizing the people 
of the territory to form a constitution. But, 2, it 
was stipulated that slavery should be excluded from 
all " the territory ceded by France to the United 
States, under the name of Louisiana, north of 36° 30' 
north latitude." 3. Maine was to be admitted to the 
Union. The inhabitants of Missouri were left to de- 
cide for themselves whether the state should be slave 
or free, but the admission of Missouri was not guar- 
anteed, however clear was the understanding that she 
shoidd be admitted. 

In this compromise, the advantages were on the 
part of the North. The South held nothing but its 
own, but, 1, by the admission of Maine, the North 
gained supremacy in the Senate. 2. She secured the 
freedom from slavery of all the vast Northwest, to 
wliich already the lines of emigration were trending 
as the further seat of a dense population : i. e., she 
extended the advantages she enjoyed under the ordi- 
nance of 1787 to the remainder and greater portion 
of the Northwest, and, 3, she had taken and main- 
tained the position of a power that henceforth was to 
be consulted and appeased before any expansion of 
the South could be made. 

The first two advantages were political, and, if not 
above criticism, were at any rate conceded to be legiti- 



THE MISSOURI COMPROMISE. 225 

mate subjects of political action. This cannot be said 
of the third and last advantage, for it arrayed two 
sections against each other, and was an unmistakable 
declaration that the growing power of one of these 
sections was no longer to be restrained within strictly 
political limits. The restraints of political character 
once broken through, what was to regulate or limit the 
future action of a power that appealed to the vague 
and unsubstantial inspiration of moral motives ? 

This compromise was carried into effect, and by a 
majority of the southern members of each House of 
Congress ; and credit must be given to them for sub- 
mitting to compromise that which was their undoubted 
legal I'ight. This action can be explained only by the 
spirit that animated President Monroe during the 
negotiation of the Spanish treaty, and by that already 
noticed as prevailing in the South against the exten- 
sion of slavery. 

The effects of the Missouri Compromise were : 1. 
The revelation that a balance of power existed be- 
tween the sections, and that upon its maintenance by 
compromise depended the preservation of the Union. 
2. That henceforth the subject of slavery was not 
wholly a political one, but that moral considerations 
had become infused into its consideration, and that the 
dangerous conjiinction of ethics with politics had been 
established. 3. That sectionalism was recognized by 
the establislunent of a geographical line across which 
neither party was to step.^ 4. That North and South 
acted on the assumption that Congress had absolute 
power over the territories. 

1 Jefferson to John Holmes, April 22, 1820. Lalor, Compro- 
mises, i, 551. 



226 CONSTITUTIONAL LEGISLATION. 

This compromise possessed the weakness inherent 
to all compromises, namely, that it was founded upon 
circumstances which were changeable ; the history of 
the United States thenceforth was the history of the 
endeavors of a divided people to reconcile their com- 
pact with constantly changing conditions. If, instead 
of this imaginary line, there had been a Chinese wall 
which would have restrained effectually the flood of 
immigration within the territory north of 36° 30', and 
had the territory south of this degree of latitude not 
been extended by conquest, purchase, or treaty, the 
Missouri Compromise might have existed forever : but 
it was founded upon conditions which changed with 
every movement of the rapidly moving West, and it 
had to be readapted to the acquisition of Texas, to the 
acquisition of California, to the admission of Nebraska 
and Kansas, — in a word, it had to conform to the 
expansion of the South m territory and to the expan- 
sion of the North in population. No hard-and-fast 
bargain was equal to this task. It came to an end, or 
rather, the compromise of 1850, which, virtually, was 
the Missouri Compromise over again, came to an end, 
amid scenes of discord and bloodshed. 

But the great importance of the Missouri Compro- 
mise and its successors lies in the fact that the com- 
promise that was so thoroughly an ingredient of the 
Constitution of the United States was recognized de- 
hors the Constitution as the one only force which 
could bind together two differing peoples and two 
incongruous forms of anglican civilization. A mere 
Constitution had proved to be insufficient for this end 
as early as 1820: from this year to 1861, the bond 
of union was the principle of compromise which was 



THE COMPROMISES OF LEGISLATION. 227 

made a prerequisite to the admission of Missouri 
into the Union ; and so clearly was this recognized as 
essential to the stability of the Union that, as late as 
1860, when it was perceived that the states could no 
longer hold together on the old basis, the sole attempt 
to preserve the Union was the endeavor to fan the 
embers of the Missouri Compromise into new flame 
by the futile Crittenden Compromise. The only hope 
of "saving the Union " was by a recurrence to com- 
promise, and with its failure expired the last appear- 
ance in our history of compromise as a groundwork 
of Union. 

From 1820 to 1861, the Union rested not upon the 
compromises of the Constitution, but upon those of 
legislation, and these legislative compromises were 
mere bargains between the two great sections of the 
United States. 



CHAPTER XL 

COERCION, OR NON-COERCION? 

Condition of affairs at the inauguration of Abraham Lincoln — Coer- 
cion, or non-coercion ? — Inaugural Address and answer to the 
Virginia Commissioners — Coercion — The President's Message of 
July, 1861 — " No state, upon its own mere motion, can lawfully 
get out of the Union." 

When Abraham Lincoln took tlie presidential oatli 
of office, the whole country was in the direst agita- 
tion. The secession of South Carolina had been fol- 
lowed by that of six other states, and the national 
flag was flying over four forts only on the coast that 
stretched from Cape Henlopen to the Rio Grande. 
The eyes of the world were at that moment concen- 
trated upon one of these forts, Sumter, for it had been 
regularly invested by secession forces, and with each 
recurring day might come the news that its flag had 
been lowered in subjection. Allegiance to the United 
States had been cast off, and the federal government 
was powerless to execute a single one of its orders ^ 
throughout the vast region known as the Cotton or 
Gulf States ; Virginia, North Carolina, Tennessee, 
and Arkansas were arming, ostensibly against all 
comers, but it was feared that they had the intention 
of joining the seceded states. In the border states 

1 The United States' postal service was maintained in the seceded 
states until June 1, 1861 ; but this was suffered by the Confederate 
government for motives of convenience and self-interest only. 



COERCION UNCONSTITUTIONAL. 229 

of Maryland, Kentucky, and Missouri, the jDopulation 
was divided against itself, and the most that the gov- 
ernment could hope for was to hold its own within 
these disputed limits. The Congress that had just 
terminated ^ had done nothing to effect harmony, so 
torn and rent had it been by the conflicting parties 
and factions ; it had been inefficacious for conciliation 
or cure, and the great Peace Convention, called at the 
instance of Virginia, had proved to be of so little avail 
that its disheartened members had separated, leaving 
their beneficent object farther from attainment than 
ever. Among the last things which the Convention 
had done was this significant act — it had permitted 
a resolution to be placed upon its journal expressing 
the " conviction that the Union, being formed by the 
assent of the people of the respective states, and being 
compatible only with freedom and the republican in- 
stitutions guaranteed to each, cannot and ought not 
to be maintained by force." The Convention, there- 
fore, deprecated " any effort by the federal govern- 
ment to coerce in any form the said states to reunion 
or submission, as tending to irreparable breach, and 
leading to incalculable ills," and it earnestly invoked 
" the abstinence from all counsels or measures of com- 
pulsion towards them." ^ 

^ The 36th Congress. 

2 Ann. Cycl., 1861, 568. The power to coerce a state is not among 
the powers granted in the Constitution. On the olst of May, 1787, 
a clause " authorizing an exertion of the force of the whole against 
a delinquent state " was considered. Madison vigorously opposed it, 
and made use of this language : " The use of force against a state 
would look more like a declaration of war than an infliction of pun- 
ishment ; and would probably be considered by the party attacked as 
a dissolution of all previous compacts by which it might be bound." 
Whereupon the Convention dropped the subject and never recurred to 



230 COERCION, OR NON-COERCIONS 

Tliis deprecation of coercion was in accordance with 
the doctrine of " strict construction of the Constitu- 
tion," and also with an elaborate opinion by Jeremiah 
S. Black, late Attorney-General, submitted to Presi- 
dent Buchanan, to the effect that there was no con- 
stitutional power in the federal government to coerce 
a refractory state. This opinion of the Attorney-Gen- 
eral, and the consequent line of conduct pursued by 
President Buchanan, had brought down upon these 
officials unmeasured obloquy at the hands of the domi- 
nant party in the North : but the opinion was a logical 
conclusion of the principle of construction maintained 
by the Democratic party by whom the President had 
been chosen. In fact, this legal opinion laid bare to 
the people the real, underlying cause of the existing 
trouble — the different and conflicting principles of 
constitutional construction upheld by the North and 
by the South, and the obloquy heaped upon the un- 
lucky ofificials was merely heated denunciation of the 
doctrine adhered to by the administration. 

Nevertheless, the incoming President, Lincoln, was 
confronted at the outset by the fact that this doctrine 
had been acted upon by the executive branch of the 
government down to the very moment in which he had 
taken -the oath of office ; that the legislative branch 
had not denied the principle in word or deed ; that the 
judicial branch had not yet met the question of coer- 
cion decisively, and that, scarcely three weeks before, a 
national convention, composed in greater part of north- 
it. Madison afterward said of it : " Any government for the United 
States formed on the supposed practicability of using force against 
the unconstitutional proceedings of the states, would proA'^e as yision- 
ary and fallacious as the government of Congress," referring to the 
Congress of the Confederation of 1781. 



ELEMENTS OF REPUBLICAN PARTY. 231 

ern states, had declared that the Union ought not to be 
maintained by force, and had deprecated any effort by 
the federal government to coerce the states to reunion 
or submission. Adherence to the doctrine of strict 
construction would leave the seceded states undis- 
turbed ; woidd permit the unobstructed secession of 
states that might desire to secede thereafter, and would 
relegate reunion to an uncertain but peacefid future : 
but a construction of the Constitution which would 
evolve power in the federal government to compel and 
maintain union by force would unquestionably precipi- 
tate civil war. It is not surprising that, with such a 
choice before it, the whole country was plunged into 
the direst perplexity: peace or war. Union or Dis- 
union, were the issues of a game upon which its for- 
tune was staked. 

If the President were to reflect the doctrines of 
those who had chosen him, there could be little doubt 
of his future course ; for the victorious EepubKcans 
comprised those who were even then shouting for " a 
strong government," those who doubted that the Con- 
stitution which had been suitable enough for a few 
millions of people and for times of peace would be so 
for a great population and for tunes of civil conflict, 
and those who, hke the Abolitionists, looked upon the 
Constitution as a compact with hell, and welcomed 
the secession of the states with the joyful exclama- 
tion of " AU hail, disunion ! " i This new party em- 
braced the mass of liberal constructionists in the 
Union, and such had become the antipathy between 
the northern and southern sections that the trium- 
phant Republicans had taken no greater pains to con- 
^ Wendell Phillips, Boston, January 20, 1861. 



232 COERCION, OR NON-COERCION? 

ceal their own sectional feeling than had the South- 
erners theirs, but had openly rejoiced in the fact that 
" a Northern President," " a President that really 
represented the North," would take the helm on the 
ensuing fourth of March. It was to be anticipated, 
then, that, reflecting the notions of constitutional con- 
struction entertained by his party, the incoming Pres- 
ident would rely upon " the war powers," and exert 
the coercive force of one body of the states against 
the other. 

This anticipation was encouraged by the personal 
antecedents of Abraham Lincoln. He had never 
taken any other view of the federal Constitution, than 
that its supremacy was not restricted to the limitations 
set upon it by itself, but that it was " the supreme law 
of the land " to the exclusion of everything that it did 
not grant, and that all that was necessary to establish 
its " implied powers " was to enunciate them in laws 
of the United States made " in pursuance thereof." ^ 

Only three weeks before, the very day indeed upon 
which he had left his home and had begun his journey 
to Washington,^ he had used this language in reply 
to an address of welcome at Indianapolis : " By the 
way, in what consists the special sacredness of a state ? 
I speak not of the position assigned to a state in the 
Union by the Constitution ; for that is the bond we 
aU recognize. That position, however, a state cannot 
carry out of the Union with it. I speak of that 
assumed primary right of a state to rule all wliich is 
less than itself, and to ruin all which is larger than 
itself. If a state and a county, in a given case, 

1 Constitution of the United States, Article VI. 

2 February 11, 1861. 



INDIFFERENCE TO THE STATES. 233 

sliould be equal in extent of territory and equal in 
number of inhabitants, in what, as a matter of prin- 
ciple, is the state better than the county ? " ^ Every 
word which dropped from the lips of the President- 
elect fell upon anxious ears, and there were not want- 
ing conservative men in his own party to note that, 
in his consideration of a sovereign state, he had done 
that which Davis and Toombs and Wigfall were then 
doing, — not regarding it "in the position assigned 
to it in the Union by the Constitution," but in a posi- 
tion outside of the Union and of the Constitution ; 
and that the first notice which he had taken of the 
states was to make light of them. The expression, 
" By the way, in what consists the special saeredness 
of a state ? " grated on the feelings of these men, and 
struck despair into the hearts of those in whom rever- 
ence for the Constitution was ingrained, and who re- 
garded the states as the sources of the federal system, 
and as the sole defence against the encroachments or 
assaults of the general government. The strict-con- 
structionists forthwith charged the President-elect with 
ignorance or wilfulness in putting a state and a county 
(a sovereign and a non-sovereign) upon an equality, 
and also with indidging in a flippant and mocking 
tone, irreconcilable with reverence for the Constitution 
or with the gravity of the situation, and which boded 
ill to the integrity of the sovereignties which com- 
posed our federal system. Thus, in wending his way 
to Washington to become President of the United 
States, Abraham Lincoln loft behind him the appre- 

^ That hostile criticism was not blind to the defectiveness of con- 
stitutional principles betrayed by this inquiry is shown by the fact 
that Jefferson Davis, in his Message of April 29, 1861, refers to this 
passage as exhibiting " a lamentable and fundamental error." 



234 COERCION, OR NON-COERCION? 

hension that, in a conflict between states, he, the 
head of the federal government, would have little 
knowledge of the nature of the sovereignties with 
which he would have to deal, and that the states 
themselves, North as well as South, would meet with 
no more regard for hun than if they were counties. 

There were, however, great obstacles to the imme- 
diate adoption of coercion. Men and money would 
have to be raised. Men, it is true, were in plenty, 
but the question of money was a difficult one in face 
of the low credit of the government and of the men- 
acing aspect of affairs.^ The navy was scattered over 
the face of the globe ; ^ the army had been weakened 
by the resignation of southern officers, and even by 
the capture of southern garrisons, and the loss of the 
southern posts would force the government to take its 
initiative from points exterior to the territory of in- 
tended operations. The northern arsenals had been 
partially depleted, and the southern magazines with 
their contents were in the hands of secessionists,^ 
while the capital itself, situated in the midst of a dis- 
afPected population and on the verge of the theatre of 
war, was manifestly insecure.* The great European 
powers were certain to withhold their sympathy from 
the North, and were as certain to extend it to the 
South ; already their pubhc prints were predicting 

^ No responsible bidder had offered to take any considerable amovmt 
of the Treasury notes authorized by the act of December 17, I860, at 
par, at a lower rate of interest than 12 per cent. Message of Presi- 
dent Buchanan, January 8, 1861. 

" Dawes' Report, February 21, 1861 : but see Branch's Minority 
Report. 

^ Report of the Secretary of War, January 15, 1861 ; also that 
of February 18, 1861. 

* Report of the Secretary of War, February 18, 1861. 



ANXIETY OF THE COERCIONISTS. 235 

tlie downfall of the federal government, and were ex- 
ultantly pointing- to the seceded states as proof of an 
accomplished dissolution of the Union. Moreover, 
while the northern wing of the Democratic party was 
openly op^josed to aggression, and while a people who 
knew nothing but peace and who were averse to war 
were still deluding themselves with hopes of compro- 
mise and harmony, it was extremely doubtfid whether 
a policy of coercion would be sustained. Could the 
country be depended upon for a long, a costly, and a 
bloody conflict ? The rupture of the Union was hav- 
ing its effect even now in the direction of submission, 
and as cries of discord and hatred rose in every quar- 
ter, and pillar after pillar of the state was falling, 
men who a week ago had been calling for coercion 
were faltering or were dumb. The influences that 
were leading many worthy but tmiorous men to ask 
whether the Union were worth the fearfid cost, now 
foreseen, to preserve it, and to doubt if it was longer 
witliin the power of man to save it, might affect the 
President in the same way, and, should he take 
counsel of his fears, he would find ample support in a 
resolution adopted by the national Convention which 
had nominated him to the Presidency, and which de- 
nounced " the lawless invasion by armed force on the 
soil of any state or territory, no matter under what 
pretext, as among the gravest of crimes." Congress 
would not be in session at liis inauguration ; yet, with- 
out its authority, any invasion of a state, however 
trivial, would be lawless, and thus he would begin his 
term of office by acts without constitutional warrant, 
and in the teeth of his party's denunciation. 

The dreadful scene of the dissolution of the Union, 



236 COERCION, OR NON-COERCION? 

pictured by Webster, was then before Mr. Lincoln's 
eyes, as it was before those of his halting countrymen, 
and to take up coercion would be to augment the exist- 
ing horror; the Border States were already at his 
elbow, and, overcome by present evil and shrinking 
from an unknown future, he might lend an ear to the 
whisperings, and, content with that which was left, 
relegate to time and circumstances the reunion of all 
the states. It was not without reason, therefore, that 
those who favored armed compulsion should be as 
anxious as the conservative elements of the North 
were, and like them await the Inaugural Address with 
apprehension. 

The Inaugural Address was duly delivered, but the 
country was little wiser than before. North and 
South interpreted it according to their will ; tliis sec- 
tion declared that it breathed forth threatenmgs and 
slaughter ; that asserted that it held out the olive 
branch. A month later, in answer to the Virginia 
Commissioners, who had been appointed by the state 
Convention to " respectfvdly ask liim to communicate 
to this Convention what course he intended to pursue," 
the President became his own expounder. He re- 
peated, that he would continue to hold " the property 
and places belonging to the government, and to collect 
the duties and imposts ; but beyond what was neces- 
sary for these objects there would be no invasion, no 
using of force against or among the people anywhere ;" 
but if an unprovoked assault had been made upon 
Fort Sumter, he should hold himself at liberty to re- 
possess it, and that, in any event, he should repel force 
by force. 1 He should not attempt to collect the du- 
^ The position here adopted by President Lincoln is no more nor 



COERCION ADOPTED. 237 

ties and Imposts by any armed invasion of any part 
of the country ; not meaning by this, however, that he 
might not land a force deemed necessary to relieve a 
fort upon the border of the country.i This answer 
was given to the Commissioners on the fifteenth of 
April, simultaneous with the President's call for mili- 
tia to suppress combinations and to cause the laws to 
be duly executed ; to which call Letcher, the Gov- 
ernor of Vu-ginia, replied in these terms : " I have only 
to say, that the militia of Virginia will not be fur- 
nished to the powers at Washington for any such use 
or purpose as they have in view. Your object is to 
subjugate the southern states, and a requisition made 
upon me for such an object, in my judgment not 
within the purview of the Constitution or the act of 
1795, will not be complied with. You have chosen 
to inaugurate civil war, and having done so, we wiU 
meet it in a spirit as determined as the administration 
has exhibited towards the South." 

Fort Sumter had surrendered on the thirteenth, it 
was evacuated on the fourteenth, and that night the 
President sent to the Secretary of State a proclama- 
tion convening Congress on the fourth of July and 
calling for troops, which was proclaimed the next day. 
On the nineteenth, another proclamation declared the 
ports of the Gulf States and South Carolina to be 
blockaded. On the twentieth, the federal government 
seized the telegraphic despatches of the past year in 
the northern states ; on the twenty-seventh, the Presi- 
dent extended the blockade to the ports of North Car- 
less than that taken by his predecessor, President Buchanan. See 
Message at the opening of the Second session of the Stith Congress, 
December, 1860, and also that of January 8, 1861. 
^ See also Message of July 4, 1861. 



238 COERCION, OR NON-COERCION? 

olina and Virginia, and the government at once set to 
work to render the blockade effectual. On the third 
of May, the President issued another proclamation 
calling into service forty-two thousand men for three 
years, a term, the duration of which, in contrast with 
the first call, indicates how rapid the exj)ansion of 
ideas in reference to the magnitude of the work in 
hand had been since the fourteenth day of Ajiril. In 
this proclamation, too, the President had, of liis own 
motion, increased the regular army by ten regiments, 
or more than twenty-two thousand men, and had in- 
creased the navy by eighteen thousand seamen. On 
the sixteenth of May, he issued a further proclamation 
suspending the writ of habeas cmyus in the localities 
still occupied by federal troops in Florida, in case the 
commander of the forces found it necessary, and au- 
thorizing him to remove all dangerous or suspected 
persons from the vicinity of the United States forts. 
On the twenty-fifth, an armed force aroused John 
Merryman, a citizen of Maiyland, from his bed about 
two o'clock in the morning and placed hun in custody 
in Fort McHenry. Merryman, the same day, pre- 
sented his petition to the Chief Justice of the United 
States for a writ of habeas corpus, which, on the 
twenty-sixth, was served upon General George Cad- 
walader, whose answer to the writ contained, among 
other things, this astonishing information ; " He has 
further to inform you, that he is duly authorized by the 
President of the United States in such cases to sus- 
pend the writ of habeas corpus for the public safety." 
The General declined to produce Merryman until 
instructions had been received from the President, 
whereupon the Chief Justice ordered an attachment 



EXTRA-CONSTITUTIONAL POWERS. 239 

to be issued against Cadwalader, which the official in 
charge was unable to serve because he " was not per- 
mitted to enter the gate." Other instances of the 
kind occurred in different parts of the country, and 
by October nineteenth, one hundred and seventy-five 
prisoners of state had been confined in Fort La Fay- 
ette. AH of these arrests had been arbitrary. On 
the fifteenth day of April, the President had called 
Congress to meet in extra session, on the fourth of 
July.i Long before that time all men throughout the 
land knew that civil war was upon them. 

In every one of these proclamations and in the pro- 
cedure under them, except that of convening Congress 
in extra session, the President acted without consti- 
tutional power. He raised armies and provided for 
calling forth the militia to execute the laws of the 

Union, suppress insurrection, and repel invasion, 

powers which by the Constitution belong solely to 
Congress.2 He increased the navy of his own motion, 
and set on foot and extended a blockade, which was 
an act of war unauthorized by Congress ; and with 
nothing to establish his right to proclaun martial law 
and to suspend the privilege of the writ of haheas cor- 
pus, except an opinion of his Attorney-General, he 
authorized his officers to do so, and arbitrary arrests 
followed in states not in rebelMon. This assumption 
of powers not conferred upon the President brought 
upon him much animadversion, the severity of which 
was by no means mitigated by the apology of " neces- 
sity " everywhere advanced by those who sustained 
him. His course was compared unfavorably with 

^ The first session of the 37th Congress. 
2 Article I., sect. 8. 



240 COERCION, OR NON-COERCION? 

that of the President of the Confederate States, who 
took care to act strictly within his Constitution, and 
whereas Jefferson Davis called the Confederate Con- 
gress together witliin a fortnight, President Lincoln 
allowed an interim of eleven weeks to elapse before 
Congress assembled on the fourth of July. This seem- 
ing lack of energy might have been a sagacious mode 
of acquiring the advantage which a knowledge of 
the action of the Confederate Congress would by that 
time give our own : but his censors insinuated that 
the delay was occasioned rather by the opportunity it 
would afford the President to make precedents for the 
exercise of " the latent powers," and to usurp the 
powers of the absent Congress. That President Lin- 
coln was fully aware of the unconstitutionality of his 
proceedings, and that he desired his party to share the 
responsibility incurred by him, is clear from the act of 
August sixth, which was the first in the series of con- 
donation acts. The condonation by one branch of 
government of the faults of another branch was with- 
out validity, and, indeed, was itself merely another 
unconstitutional act, conunitted, in this instance, by 
two branches of the government instead of by one 
alone : nor is it to be supposed that President or Con- 
gressmen regarded this innovation as valid, or as any- 
tliing else than what it was, — a compliance with the 
demand of the President that his party should place 
itself where it could not repudiate his unconstitutional 
acts. 

When Congress met together, the President's Mes- 
sage was received with eagerness, but, like the Inau- 
gural Address, it was not altogether satisfactory. 
After entering into the details of the reduction of 



IGNORING OF STATE SOVEREIGNTY. 241 

Fort Sumter, and after placing upon the Confeder- 
ates the burden of beginning hostilities to which the 
United States were compelled to respond, he exposed 
the fallaciousness of the " armed neutrality " of the 
Border States, in a few pithy sentences. He Hke- 
wise exhibited with great clearness the sophism upon 
which the South had seceded from the Union. " The 
sophism itself," he said, "is, that any state of the 
Union may, consistently with the national Constitu- 
tion, and therefore lawfully and peacefully, withdraw 
from the Union without the consent of the Union or 
of any other state'' Had he contented himself with 
this statement, which contams the condition of with- 
drawal from the Union, then admitted to be essential 
even by rig;d constructionists, the consent of all or at 
least of a majority of the states, — the President 
would have done well. He went on to say, however, 
that " this sophism derived much of its currency from 
the assumption that there is some omnipotent and 
sacred supremacy pertaining to a state, — to each 
state of our Federal Union," and to assert, by a his- 
torical perversion, that no one of the states had ever 
been a state " out of the Union." The remarks that 
followed were an elaboration of the text which he had 
set forth in his address at Indianapolis, and their tone 
was adverse in the extreme to the integrity of states. 
He scouted the notion that a state had ever existed out- 
side of the Union, declaring that the states have their 
status in the Union, and that they have no other legal 
status, and that no one, except Texas, ever had been 
a sovereignty, assertions susceptible of ominous inter- 
pretation to a state which had " gone out," in case the 
fortune of war shoidd bring it to the day when it was 



242 COERCION, OR NON-COERCION? 

to be brought back. This argumentation has proved 
unfortunate in lending the name of Abraham Lincohi 
to a sophism quite as mischievous as the one he had 
been denouncing. Its imj)ortance, at the time of 
writing, was diminished by the assumption that the 
President felt called upon to make a rejoinder to the 
strictures of Jefferson Davis upon his Inaugural Ad- 
dress and Indianapolis speech, and that, in doing so, 
he had unconsciously overstepped the limits prescribed 
by historical facts and right reason. Equally weak 
was the argumentative exculpation of himself for 
authorizing the suspension of the privilege of the 
writ of habeas corpus, " by the commanding General 
in proper cases ; " an exculpation which terminated in 
the intimation that he was aware that the Constitution 
did not specify who was to exercise the power of sus- 
pension, and that it was not to " be beheved that the 
framers of this instrument intended that in every case 
the danger should run its course until Congress could 
be called together." In relation to other uncon- 
stitutional proceedings, the President admitted that 
" these measures, whether strictly legal or not, were 
ventured upon under what appeared to he a popular 
demand and a public necessity ; trusting then, as 
now, that Congress would readily ratify them," — a 
trust which seems confidently placed, but which it 
took Congress tliirty-three days before it could bring 
itself to sustain. 

The following paragraph in reference to reconstruc- 
tion occurs in this message : " Lest there be some 
uneasiness in the minds of candid men as to what is 
to be the course of the government towards the 
Southern States after the rebellion shall have been 



ONCE A STATE, ALWAYS A STATE. 243 

suppressed, the Executive deems it proper to say, it 
will be his purpose then, as ever, to be guided by the 
Constitution and the laws ; and that he probably will 
have no different understanding of the powers and 
duties of the federal government relatively to the 
rights of the states and the people, imder the Consti- 
tution, than that expressed in his Inaugiiral Address." 

But the only expression in the Inaugural Address 
bearing upon the subject is this : " It follows from 
these views that no state, upon its own mere motion, 
can lawfidly get out of the Union ; that resolves and 
ordinances to that effect are legally void ; and that 
acts of violence, within any state or states, against the 
authority of the United States are insurrectionary or 
revolutionary, according to circumstances. I there- 
fore consider that, in view of the Constitution and the 
laws, the Union is unbroken." 

This makes manifest the President's notion of 
what the status of a seceded state was — it was still 
in the Union ; but what the course of the govern- 
ment towards this state would be after the rebellion 
should be repressed, is not disclosed. The Inaugural 
Address has nothing to say about it, and the only 
notable thing in this clause from the message is the 
assimiption that the rebellion would be suppressed. 
When we recall what the condition of the country 
was when this line was penned, we cannot but admire 
the steadfast trust that the day would surely come 
when the Union would be restored. 

It may be well to anticipate events by saying that 
the President maintained to the close of his life the 
doctrine he announced on the day of his inauguration. 



244 COERCION, OR NON-COERCION? 

and which he reiterated in this message, — the doc- 
trine that " no state, upon its own mere motion, can 
lawfully get out of the Union." It was upon this 
principle that he came at last into positive opposition 
with the groups of extremists which were led by 
Wade and Sumner in the Senate and by Stevens and 
Henry Winter Davis in the House ; a principle which 
may be said to have expired with him, for it was over- 
come and thrust aside when " the Congressional pol- 
icy " overcame and thrust aside his successor. 



CHAPTER XII. 

DEVELOPMENT OF PRINCIPLES OF CONGRESSIONAL 
ACTION TOWARDS THE SOUTH. 

The Crittenden Resolution of July 22, 1861 — Debate in the Senate 
upon the Resolution — Sumner's Resolutions — Stevens' vae victis 
policy — Hale on arbitrary arrests — Claim of Congress to absolute 
power in reconstruction. 

In the mean time a notion of reconstruction devel- 
oped in Congress which was destined to become antag- 
onistic to that of the President and in the end to effect 
its subversion. It was known as the Congressional 
Plan of Reconstruction, and was as radical and revo- 
lutionary in its nature as was the Presidential Plan. 
Nevertheless it will be seen, from the vote upon a res- 
olution of Congress now to be considered, that at the 
outset the notion prevailing in Congress upon the sub- 
ject was precisely that which had been entertained by 
the President, and, it may be added, by the country 
at large, at the time of the President's inauguration. 

On the day after the battle of Bull Run,^ Critten- 
den, of Kentucky, offered in the House of Representa- 
tives the following resolution : — 

" That the present deplorable civil war has been 
forced upon the country by the disunionists of the 
Southern States, now in arms against the constitu- 
tional government, and in arms around the capital ; 

1 The 22d of July, 1861 : Cong. Globe, 222. 



246 CONGRESSIONAL ACTION. 

that in this national emergency, Congress, banishing all 
feelings of mere passion or resentment, will recollect 
only its duty to the whole country ; that this war is 
not waged on their part in any spirit of oppression, or 
for any purpose of conquest or subjugation, or pur- 
pose of overthrowing or interfering with the rights or 
established institutions of those States, but to defend 
and maintain the supremacy of the Constitution, and 
to preserve the Union with all the dignity, equality, 
and rights of the several States unimpaired ; and that 
as soon as these objects are accomplished the war 
ought to cease." 

This resolution was adopted by a majority so great 
that only two members recorded dissenting votes. 

Four days afterward, the same resolution, with a 
few unimportant verbal changes, but otherwise in pre- 
cisely the same language, was introduced in the Sen- 
ate by Andrew Jolmson, of Tennessee, and was there 
adopted also by a great majority, only five Senators 
dissenting, among whom were Southerners who had 
not yet followed their colleagues to the South, but who 
were on the point of doing so. The vote in the Sen- 
ate, therefore, is as significant of northern opinion 
concerning the object of the war and of the status of 
the rebellious states, as was that of the House, and it 
may be well to review the remarks of different Senators 
at the time, inasmuch as they reflect exactly the no- 
tions of the North, and also afford a point wherefrom 
to observe how rapidly and widely these same men 
changed their opinions. While the resolution was 
directed to all the southern people, it was intended 
to affect the Border States immediately and directly. 



PLANS OF THE BORDER STATES. 247 

There can be no question that the political leaders of 
this locality entertained the hope that their states 
might perform the part of what nowadays are called 
" Buffer States." Their hope proved futile, but they 
thought that by judicious neutrahty the broad belt of 
states separating the combatants might succeed in pre- 
venting the continuance of war and might even restore 
the Union without much bloodshed ; a part which 
would be humane and patriotic in the highest degree, 
and which would eventuate in confiding the future 
maintenance of the bond of Union to their keeping ; 
certainly it would have resulted in placing the balance 
of power in their hands. But to the attainment of this 
object it was essential that no war of subjugation 
should be tolerated for a moment, that the right of 
one state to coerce another shoidd be denied, and that 
this odious doctrine be repudiated by the belligerents 
in a manner so positive that the minds of the people 
of the Border States should be at rest as far as this 
point was concerned. However feasible tliis plan 
might have seemed in times of altercation but before 
blows had been struck, it is evident that it was no- 
thing short of Utopian after blood had been shed. It 
was asking the North and the South, both, to submit 
their differences to a third and interested power.^ 
The South could do this without risk, for the Border 
States were slave states, and therefore their interests 
were on the side of slavery ; but for this very reason the 
North coidd not subject itself to the tutelage of these 
states — it would be to submit their cause indirectly 

1 See President Lincoln's message, July 1, 1861. " I see no reason 
why I should give up my opinions to those of any gentlemen from the 
Border States." Henry WUiSON. 



248 CONGRESSIONAL ACTION 

to the arbitrament of their foes. This plan, therefore, 
was out of the question, and the uppermost thought of 
the Border States, now that a pitched battle had been 
fought, was to stave off the horrors of war from their 
soil. Nevertheless, whatever the humane or the ambi- 
tious designs of the border chiefs, a great part of the 
border population sympathized with the seceding 
states, and were at that moment enrolling troops, os- 
tensibly for the defence of their territories, but reaUy 
with the intention of joining the secessionists. On 
the other hand, the same dubious plays were being 
acted on the same stage in the interest of the North. 
These states were already divided households ; the 
northern and southern sentiment prevailed in contigu- 
ous counties. The belt comprising Maryland, West- 
ern Virginia, Kentucky, and Northern Missouri was 
virtually in the military possession of the North, and 
every consideration urged this government to main- 
tain therein its footing. Accordingly, Congress de- 
layed not a moment to adopt a resolution which was to 
carry with it an authoritative enunciation of its prin- 
ciples and policy, and one well calculated to allay the 
apprehension of the border population and to attach 
the wavering to their side. Such a resolution admit- 
ted but little debate, and it is fair to presume that 
the different Senators meant to convey to the world, 
as well as to the Border States, the sentiment and 
doctrine of their own sections of the country, as 
plainly and directly as was possible. 

That the Border States were bitterly opposed to 
any war that savored of subjugation, and especially of 
one that threatened the integrity of the states, no mat- 
ter what the conduct of their citizens, is clearly re- 



CRITTENDEN'S RESOLUTION. 249 

vealed by the remarks of Senator Willey, of Western 
Virginia, who said : ^ " There is a fear among many, 
there is a prejudice wide extended in the public senti- 
ment of Virgmia, that the design of this war is subju- 
gation ; that the design of this war, literally, in the 
language of the honorable Senator from Vermont, is 
to pass our people under the yoke. 

"I do not understand such to be the purpose of this 
war. The Legislature of the state which I represent 
does not understand such to be the purpose of this 
war. My constituency are for the preservation of the 
Union, the vindication of the Constitution, and the 
execution of the laws. . . . But candor constrains me 
to say that if any different purpose shaU be avowed, 
if it shall ever be intimated or declared that this is to 
be a war upon the domestic institution of the South, 
and uj)on the rights of private property, every loyal 
arm on the soil of the Old Dominion will be mstantly 
paralyzed." 

Andrew Jolmson, who had introduced the resolu- 
tion,2 said in explanation of it that " The resolution 
simply states that we are not waging a war for the 
subjugation of states. If the Constitution is main- 
tained and the laws carried out, the states take their 
places and aU rebel citizens must submit. That is 
the whole of it." 

Mr: Doolittle, of Wisconsin, admitted very point- 
edly that the resolution was an act not altogether legis- 
lative in its character, but a declaration of a purpose 
of the government. It was a deed in that sense, which 
was to have its effect upon the American people. 

1 July 25, 1861 : Cong'. Globe, 259. 

2 July 24, 1861 : Cong. Globe, 243. 



250 CONGRESSIONAL ACTION. 

Senator Trumbull, of Illinois, drew a clear distinc- 
tion between a state and the rebelKous citizens of a 
state : he would subjugate the rebels, but in respect 
to the states, he said very emphatically : " I know 
that persons in the southern states have sought to 
make tliis a controversy between states and the fed- 
eral Government, and have talked about coercing 
states and subjugating states ; but it has never been 
proposed, so far as I know, on the part of the Union 
people of the United States, to subjugate states or 
coerce states. It is proposed, however, to subjugate 
citizens who are standing out in defiance of the laws 
of the Union, and to coerce them into obedience to 
the laws of the Union." 

Senator Fessenden, of Maine, said : " I do not 
want to carry on tliis war for the purpose of subju- 
gating the people of any state, in any shape or form ; 
and it is a false idea gotten up by bad men for bad 
purposes, that it ever has been the purpose of any 
portion of the people of tliis country. I am willing, 
therefore, to meet them face to face, and say I never 
had that purpose, and have it not now. But we say, 
notwithstanding we have not that purpose, and dis- 
tinctly avow it, we have a purpose, and that is to de- 
fend the Constitution and the laws of the country, 
and to put down this revolt at whatever hazard ; and 
it is for them to say whether it is necessary for us, in 
the course of accomplishing a legitimate and proper 
object, to subjugate them in order to do it. I hope 
not ; and if it is necessary and we could do it, I 
should want to keep them subjugated no longer than 
was necessary to secure that purpose. Thus far it 
must go, and no further. To that it must go at all 
events and hazards." 



BRECKINRIDGE ON SUBJUGATION. 251 

Senator Hale, of New Hampshire, called to the 
recollection of the Senate his oft-repeated declara- 
tions that the Government had no more right, no 
more legal or constitutional authority, to interfere with 
slavery in the states than it had to interfere with the 
condition of the serfs in Russia, or with the rights 
and wrongs of the laboring classes in England. 

The debate, if it may be called one, had turned 
upon the meaning and force of the word " subjuga- 
tion," and it had not escaped the notice of John C. 
Breckinridge, the Senator from Kentucky, who still 
lingered in the United States Senate, that these expo- 
nents of northern sentiment were dwelling upon, and 
were maintaining, the notion of subjugation, and that 
the most they had succeeded in doing was to make a 
distinction between the states and the people of a 
state. Accordingly, he rose and avowed his belief 
that the war was being prosecuted, according to the 
purposes of a majority of those then managing the 
legislation, for objects of subjugation. He declared 
his belief that, unless these states which had seceded 
from the federal Union laid down their arms and sur- 
rendered at discretion, the majority in Congress would 
listen to no terms of settlement, and that those who 
attempted to mediate would speak to the winds. He 
believed, therefore, that the war, in the sense and 
spirit entertained by these Senators, was a war of 
subjugation, and in saying this, he drew no distinction 
between a state and its people, but left his language 
to be construed in the most general and comprehen- 
sive sense of which it was capable. 

He supported this statement by recalling an asser- 
tion of Senator Sherman, made but a few days before, 



252 CONGRESSIONAL ACTION. 

to the effect that, unless the people of certain states 
in the South yielded willing- obedience, he would de- 
populate those states and people them over again, and 
this the Kentuckian characterized justly, as not only 
a war of subjugation but a war of extermination. 
Breckinridge also recalled an amendment offered by 
Trumbidl to a general bill, but two days before, 
which had received the vote of a gi-eat majority of 
the Senate, wherein it was provided that any person 
held to service or labor, who should be employed to 
aid the rebellion in any form, shoidd be discharged 
from service and labor. This could apply to slaves 
only, and was equivalent to a general act of emanci- 
pation ; a proceeding in flat contradiction to Hale, 
and also to those who had asserted their respect for 
the integrity of the states. 

These argumenta ad Jiominem of Breckinridge 
called forth tart and acrimonious replies from the 
Senators who had been named, and the debate, which 
had started under such favorable auspices and with 
such good intentions, speedily degenerated into accu- 
sation and recrimination. The residt was unsatis- 
factory : nevertheless, by a vote of thirty to five, the 
Senate of the United States, and by an almost unani- 
mous vote the House of Representatives, proclaimed 
to the world that the war on the part of the North 
was " not prosecuted in any spirit of oppression, nor 
for any purpose of conquest or subjugation, nor for 
the purpose of overthrowing or interfering with the 
rights or established mstitutions of those states, but 
to defend and maintain the supremacy of the Consti- 
tution and all laws made in piu'suance thereof, and 
to preserve the Union, with all the dignity, equality, 



DOWNFALL OF THE RESOLUTION. 253 

and rights of the several states unimpaired.^^ The 
votes of Congress upon the i-esokition reflected north- 
ern sentiment, though the speeches of the members 
did not do so.^ 

It is noteworthy that of the northern speakers on 
the resolution, two of the most prominent and most 
emphatic. Senators Trumbidl and Doolittle, were after- 
wards to become conspicuous defenders of the Presi- 
dential Plan of Reconstruction, and to be the targets 
of bitterness and obloquy, so great that it may almost 
be said that they went to their poKtical graves martjTS 
for the doctrine that a state coidd not be subjugated 
nor destroyed, but that once a state, always a state. 

Less than five months afterward, on the foiu'th of 
December, when Congress was met in regular session, 
Holman, of Indiana, again offered in the House of 
Representatives the resolution, word for word, with 
the following addition: "And whereas, since that 
time (July 22), no event has occurred to change the 
policy of the Government : therefore, resolved. That 
the principles above expressed are solemnly reaffirmed 
by this House." Whereupon the resolution as offered 
was laid on the table by a House that was nearly 
equally divided : for the ayes were but seventy-one, 
and the nays instead of two were sixty-five — and 
this after the last southern member had left the 
House and had gone South. It was a purely federal 
vote.^ Inasmuch as this vote was not upon the origi- 
nal resolution, it cannot be accepted as the vote with 
which the resolution would have been met had it then 
been offered for the fii-st time ; yet we cannot shut 

1 Cong. Globe, 1st sess. 37th Congress, 257-265. 

2 Cong. Globe, 15. 



254 CONGRESSIONAL ACTION. 

our eyes to this indication of the changed temper o£ 
the House. Congress was now fast fallmg into a 
mood foreshadowed by Thaddeus Stevens when he 
exclaimed : " Mr. Speaker, I thought the time had 
come when the laws of war were to govern our action ; 
when constitutions, if they stood in the way of the 
laws of war in dealing with the enemy, had no right 
to intervene." ^ 

Of still greater significance than this vote in the 
House was the offer in the Senate by Charles Sumner 
of nine resolutions, ^ of which the first one was as fol- 
lows : " Resolved, that any vote of secession or other 
act by which any state may undertake to put an end to 
the supremacy of the Constitution within its territory, 
is inoperative and void against the Constitution, and 
when maintained by force it becomes a practical abdi- 
cation by the state of all rights under the Constitution, 
while the treason which it involves still further works 
an instant forfeiture of all those functions and powers 
essential to the continued existence of the state as a 
body politic, so that from that time forward the terri- 
tory falls under the exclusive jurisdiction of Congress, 
as other territory, and the state being, according to 
the language of the law, felo-da-se, ceases to exist." 

This was the first attempt to commit Congress to 
the vae metis policy which was afterwards carried out 
by that body with the sword. The people, however, 
yet entertained no notion of the kind, and would have 
regarded it with alarm and consternation had it ap- 
peared on the statute-book. Prudence ruled the day, 
and Sumner's resolutions were received almost in 

1 August 2, 1861 : Cong. Globe, 414. 

2 February 11, 1862 : Cong. Globe, 736, 737. 



DEPARTURE FROM THE CONSTITUTION. 255 

silence : no action was taken upon them nor upon tlie 
resolutions which Davis, of Kentucky, offered for the 
purpose of counteracting them. 

It would be impossible to give a full account of the 
development of the spirit which rapidly led Congress 
to the point of ignoring the doctrine of the indestruc- 
tibility of the states, and of ignoring, too, the limita- 
tions set upon its action by the Constitution of the 
United States. Scarcely a day passed ^vithout this 
body being called upon to consider its constitutional 
limitations. Appropriation bills, confiscation bills, 
emancipation bills, conquered territory rehabihtation, 
border state conditions, — a thousand questions were 
constantly arising upon which the temper and the sen- 
timent of Congress found expression. The change in 
Congress can be followed easily from the doctrine that 
a state is indestructible, that it cannot commit treason, 
that upon its mere motion " it cannot lawfully get out 
of the Union," to the arbitrary conclusion that its 
maintenance of secession by force works an " abdica- 
tion " of all its rights under the Constitution of the 
United States. Nevertheless, the necessity of a clear 
comprehension of this departure from ancient and 
constitutional principles is imperative, and this may 
be obtained by considering the action- and utterance of 
this body on a few of the most prominent subjects of 
the day. It will be seen that this action and these 
utterances became more and more revolutionary as 
time wore on. The influence and measures of the radi- 
cals at last prevailed in Congress, as they have done 
in the parhamentary bodies of all revolutionary times. 
Conservatism became a word of scorn ; constitution- 
ality was scouted ; every infraction of ancient law and 



256 CONGRESSIONAL ACTION. 

of ancient principle was justified by the plea of " neces- 
sity," and men like Dixon, of Connecticut, and Wilson, 
of Massachusetts, actually thanked God on the floor of 
a body which owed every breath of its existence to law, 
that a servant of the government, then unknown to the 
Constitution, the Secretary of State, had had the hardi- 
hood to defy the law and to imprison men upon mere 
suspicion. Sumner's or Stevens' cry of vae victis is 
to-day heard in silence that is disturbed only by a 
general shudder ; to-morrow the mob of legislators 
are treading upon each other's heels in the effort to 
run ahead of them. 

" I desire to say,'* was the vaunt of Thaddeus 
Stevens,^ " that I know perfectly well, as I said before, 
I do not speak the sentiments of this side of the House 
as a party. I know more than that : that for the last 
fifteen years I have always been a step ahead of the 
party I have acted with in these matters ; but I have 
never been so far ahead, with the exception of the 
principles I now enunciate, but that the members of 
the party have overtaken me and gone ahead ; and they 
will again overtake me, and go with me, before tliis 
infamous and bloody rebelhon is ended. They will find 
that they cannot execute the Constitution in the seced- 
ing states ; that it is a total nullity there, and that 
this war must be carried on upon princij)les wholly 
independent of it. They will come to the conclusion 
that the adoption of the measures I advocated at the 
outset of the war, the arming of the negroes, the slaves 
of the rebels, is the only way left on earth in which 
these rebels can be exterminated. They will find that 
they must treat those states now outside of the Union 
1 January 8, 1863 : Cong. Globe, 243. 



VAE VICTIS. 257 

as conquered provinces and settle them with new men, 
and drive the present rebels as exiles from this coun- 
try ; for I tell you they have the pluck and endurance 
for which I gave them credit a year and a half ago, in 
a speech which I made, but which was not rehshed on 
this side of the House, nor by the people in the free 
states. They have such determination, energy, and 
endurance, that nothing but actual extermination or 
exile or starvation will ever mduce them to surrender 
to this Government. I do not now ask gentlemen to 
endorse my views, nor do I speak for anybody but 
myself; but in order that I may have some credit 
for sagacity, I ask that gentlemen will write this 
down in their memories. It will not be two years be- 
fore they call it up, or before they will adoj)t my views, 
or adopt the other alternative of a disgraceful submis- 
sion by this side of the country." These words had 
hardly dropped from Stevens' lips, when Owen Love- 
joy rose to find faidt with them because Stevens had 
found no warrant for them in the Constitution, but had 
founded his conceptions solely upon military necessity. 
" My chief object," said he, " is to repudiate for my- 
self and the Republican party, and the administration, 
the idea advanced by the gentleman from Pennsylva- 
nia, that if it should be necessary, as I believe with 
him it is, to annihilate these rebels, to extirpate them, 
and repeople those states with a loyal population, that 
that exile and that annihilation by military authority 
would be unconstitutional. Now I claim that this is 
precisely, if necessary, just what the Constitution im- 
peratively requires of us ; that it imposes it upon us 
as a sacred duty to destroy these rebels, and, to the 
extent that may be necessary, to exterminate them in 



258 CONGRESSIONAL ACTION. 

order to restore, as a matter of fact, what still exists 
as a matter of right, the constitutional authority of 
the government of the United States." ^ 

Stevens was too good a lawyer to place the vae victis 
policy on constitutional grounds : he placed it upon 
the only ground where it could rest, upon necessity, 
and he hesitated not to brush away the Constitution 
and all its belongings with an impatient hand ; and 
this he did by denying that the Constitution embraced 
a state in arms against the government. " I hold 
and maintain," said he, " that with regard to all the 
southern states in rebellion, the Constitution has no 
binding influence and no application." " Are not 
those seceded states," asked Dunlaj), " still members 
of this Union, and under the laws of the govern- 
ment ? " " In my opinion they are not," was the 
answer. " Then," continued Dunlap, " I would ask 
the further question, did the ordinances of secession 
take them out of the Union ? " " The ordinances of 
secession, backed by the armed power which made 
them a belligerent nation, did take them, so far as 
present operations are concerned, from under the laws 
of the nation." " Are they, then, members of the 
Union ? " persisted Dunlap. " They are not, in my 
judgment," was Stevens' answer.^ 

The vaunt of Stevens, that he was always just ahead 
of his party, and that, in due course of time, it was 
sure to catch up with him and even to run ahead, was 
not an idle one.^ How readily the constitutionists of 

1 Cong. Globe, 243, 244. 

2 Cong. Globe, 239. 

^ " I believe that not only a majority, but perhaps a very consider- 
able majority of my friends on this floor do not go to the extent to 
which I go in the doctrines ■which I have enunciated. They are com- 



HALE ON ARBITRARY ARRESTS. 259 

the Republican party were swept from their moorings 
is shown by the conduct of no less a man than John 
P. Hale, Senator of New Hampshire. Hale had been 
one of the original abolitionists, and had been in sym- 
pathy with the group of New England abohtionists, 
whose agitation had stirred the land from the day of 
the Missouri Compromise. In one respect he had dif- 
fered from them : he revered the Constitution, and 
held in sanctity the personal and political rights of the 
citizen. To him nothing was a gain which had been 
acquired at the cost of another's right, and even the 
triumph of &e North, if achieved at the cost of per- 
sonal liberty, was the worst of defeats. Accordingly, 
when Senator Trumbull offered a resolution ^ direct- 
ing the Secretary of State, Seward, to inform the 
Senate whether, in the loyal states of the Union, 
any persons had been arrested and imprisoned by the 
Secretary's orders, and under what law tliis was done, 
and TrumbuU had been severely reproached for his 
act on the floor of the Senate by every Republican 
leader that could find breath to utter his astonislunent. 
Hale had risen in his place, and had uttered these 
noble sentiments : — 

" Instead of feeling grief and mortification and 
regret at the introduction of this resolution, I thank 
my friend from Illinois for introducing it. I think it 
eminently proper, eminently appropriate ; and I shall 
feel mortified if the day has come when any act of 
your Executive may not be inquired into by his sworn 

ing along behind, and will be np shortly, but they are not up yet. 
StiU. I do not propose to take one step backward. I hold the doc- 
trines which I have enunciated to be true, and I abide by them." 
Cong. Globe, 244. 
1 December 1, 1861. 



260 CONGRESSIONAL ACTION. 

constitutional advisers, the Senate of the United 
States. If, in answering that resokition, if it passes, 
the. Secretary of State or the President shall deem it 
proper to send it to us under the seal of executive 
secrecy, I shall find no fault with that ; but the right, 
the power, the propriety, and the necessity of making 
this mquiry, to my mind, eminently exists. What is 
the purpose of this inquiry? Have not arrests been 
made in violation of the great principles of our Con- 
stitution ? If they have, let us know it, and let us 
know the necessity which impelled them. If the fact 
be that such arrests have been made, and if the neces- 
sity exists upon which they were made, then I trust 
there is magnanimity, there is justice, there is patriot- 
ism, there is forbearance enough in this Senate and in 
this Congress, to throw the mantle over every act that 
has been prompted by a patriotic impulse to serve 
the nation and preserve its liberties. You may gain 
your victories on the sea, you may sweep the enemy 
from the broad ocean and from all its arms and from 
all its rivers, until you may hoist, as the Dutch 
admiral once hoisted at the head of his flag-staif, a 
broom, indicative that you have swept the ocean of 
your foes, and you may crush every rebel that is 
arrayed against you and utterly break their power ; 
and when you have done all that, when you have 
established a military power such as the earth never 
saw, and a naval power such as England never as- 
pired to be, and constitutional liberty shall be buried 
amid the ashes of that conflagration in which you have 
overcome and destroyed your foes ; then, sir, you will 
have got a barren victory, and with aU your glory you 
will have but achieved your everlasting shame." 



HALE'S SELF-CONDEMNATION. 261 

These were noble words, and assuredly the senti- 
ments were just, constitutional, and patriotic, but 
the resolution was buried in committee nevertheless, 
and the Secretary, now exemjjt from interference, 
redoubled his efforts, and the arrests went on merrily 
for another year, when Senator Saulsbury, of Dela- 
ware, offered a similar resolution in which the inquiry 
was addressed to the Secretary of War, who had been 
emulating- the example of the Secretary of State. 
Wilson, who was shocked at this arraignment of the 
administration of the govermnent, thought that in- 
stead of the few hundred arrests which had been 
made, there ought to have been several thousands, 
and that not one man in ten who should have been 
arrested had been arrested. Fessenden and Collamer 
addressed themselves to the hopeless task of defend- 
ing the lettres des cachet ; one alone, who could not 
defend the government, found voice to condemn him- 
self, and this was the way John P. Hale ate his brave 
words of one short year before : — 

" I have regretted the exercise of this power from 
first to last ; but will say that, where the emergencies 
of the country are such, and the condition of things 
is such, as to justify a resort to extraordinary proceed- 
ings for the safety of the Government, I am willing 
that the Executive should act upon that old maxim, 
which, translated into plain English, is, ' The safety 
of the republic is the supreme law.' I confess, for 
myself,' that nothing in the whole history of the war 
has so embarrassed me, has left me in such doubt 
what course to take and pursue, as questions of this 
character. I have as earnest a desire for the preser- 
vation of the Constitution in all its integrity as any- 



262 CONGRESSIONA L A CTION. 

body else ; and it matters not to me whether victory 
or defeat attends our arms, if, when the war is over, 
it does not leave us a constitutional government. We 
are at war for that ; and I hope we shall make every 
sacrifice that is necessary to sustain it. That being 
our object, our end, and our aim, I would not now, 
while the enemy is in the field, and while the contin- 
gencies of battle are pending, and the issues of life 
or death are suspended upon the result, impede or 
hinder those who are charged with the execution of 
the laws by inquiries wliich are not vital to the gov- 
ernment. I do not look upon this as so, because I 
believe it is one that belongs to the judiciary to exam- 
ine and settle ; and if anybody has made an attempt 
to apply that remedy and has failed, it will be time 
enough then to look to some ulterior course." ^ 

Thus did a member of an independent branch of 
the government surrender his will to the keeping of 
another branch. But if a man like Hale was so easily 
torn from his antecedents and his principles, and 
hurried along with the crowd, what could be expected 
of the less resolute and less prmcipled, those self- 
seekers who make up the mass of politicians? One 
can easily see how a man of strong will, like Stevens, 
coidd bide his time and wait until the rest of the 
irresolute crowd had caught up with him, and then 
smile at their efforts to outdo him. 

In 1861, Stevens, superior to the gloom and con- 
sternation with which the disaster of Bull Kun had 
enveloped the Capitol, had retorted to Diven with a 
sneer : " I thought the time had come when the laws 
of war were to govern our action ; when constitutions, 
1 December 8, 1862 : Cong. Globe, 28. 



CONGRESS THE SUPREME POWER. 263 

if they stood in the way of the laws of war in dealing 
with the enemy, had no right to mtervene. Who 
says the Constitution must come in, in bar of our 
action ? " ^ This born leader of revolution had not 
to look long nor far for support in his radicalism. 
During the debate in the Senate, on the Confiscation 
bill,2 Mr. MorriQ, of Maine, gravely pronounced an 
opinion which cannot be passed by unnoticed, and 
which was designed to have the eifect of a judicial 
opinion upon the powers of Congress. After noting 
that the nation was in a state of general mternal hos- 
tility, and that it possessed the power of self-defence, 
he proceeded to inquire in what department of the 
government this power was lodged. Sustained by the 
Constitution,-^ and by the interpretation put upon it 
by the Supreme Coiu't, in Bro^vn v. The United 
States,^ he had no difficidty in asserting that it lay in 
Congress and nowhere else : the Executive was merely 
" Commander-in-Chief of the Army and Navy." He 
went on to say : " In the contingency of actual hos- 
tilities the nation assumes a new and extraordinary 
character, involving new relations and conferring new 
rights, imposing extraordinary obligations on the citi- 
zens, and subjecting them to extraordinary penalties. 
There is, then, no limit on the power of Congress ; 
but it is invested with the absolute powers of war, — 
the civil functions of the Government are, for the 
time being, in abeyance when in conflict, and all state 
and national authority subordinated to the extreme au- 
thority of Congress, as the supreme power, in the peril 

1 August 2, 1861 : Cong. Globe, 414. 

2 February 2.5, 1862 : Cong. Globe, 942, et seq. 

3 Article I. sect. 8. 
* 1 Cranch. 



264 CONGRESSIONAL ACTION. 

of external or internal hostilities. The ordinary provi- 
sions of the Constitution peculiar to a state of peace, 
and all laws and municipal regulations, must yield to 
the force of martial law as resolved by Congress." 

The significance of this claim of absolute power in 
Congress cannot be overrated. It must be borne in 
mind that the object of the bill under discussion was 
the confiscation of the property of rebels, particularly 
of slaves, who On the instant would be set free ; but, 
to confine our observation to the object set forth in 
the bill, it provided for the confiscation of the real 
and personal property of those in rebellion. When 
it is considered that there is no clause in the Con- 
stitution expressly conferring this power, it follows 
that such power coidd not be exercised unless it was 
implied by the Constitution. This Senator Howard 
undertook to attribute to one of the objects of the 
Constitution enumerated in the preamble, to "insure 
domestic tranquillity," and the attempts to find a jus- 
tification for the measure were divers and different. 
Morrill was not of a tentative disposition : he would 
not accuse himself in excusing himself ; he appealed 
to the clause in the Constitution which imposed upon 
Congress the duty of declaring and maintaining war, 
and he claimed everything, all power, absolute power 
in Congress, as the shortest way of enabling the radi- 
cals to attain their end. 

The consequences of tliis doctrine of the centrali- 
zation of all power, state and federal, in Congress 
during a period of " general internal hostihty," were 
far reaching. If once Congress could maintain the 
position that civil war had centred irresponsible power 
in that body, subordinating the other branches of 



" OPP OR TUNITY ! " 265 

government, and that the se6ecled states had com- 
mitted felo-da-se by actual rebellion, it would be 
omnipotent, could it unite upon one single plan of 
action. Already the bold utterances of the radical 
leadership indicated with sufficient certainty by whom 
this one plan of action would be supplied. At any 
rate, a vigorous and self-centred policy of the legis- 
lature, sitting as a Committee of Safety as well as 
a Congress, would find little annoyance from the 
cautious policy of a President who had inaugu- 
rated his administration by saying : "In view of the 
Constitution and the laws, the Union is unbroken, 
and, to the extent of my ability, I shall take care, as 
the Constitution itself expressly enjoins upon me, that 
the laws of the Union be faithfully executed in all 
of the states." The expanding radicalism of the 
Republican party chafed at the restrictions which the 
Constitution had placed around it: but turn where 
one would, the Constitution still blocked the way. 
Stevens saw this, and pushed the Constitution aside ; 
but he was too wise to claim centralization of all 
powers in Congress before the time for doing so had 
come. Sumner saw it, and ignoring the Constitution, 
cried, "Opportunity, opportunity, opportunity. . . . 
Do not fail to seize it ! " Morrill saw it, but rely- 
ing on the investiture of Congress with declaration and 

maintenance of war, went farther than them all 

it was for Congress to centralize in itself aU powers, 
to subordinate "all state and national authority to 
the extreme authority of Congress, as the supreme 
power." Tliis was revolutionary, but then any path 
that lay over a prostrate Constitution was revolution- 
ary, and this path had already been taken. 



CHAPTER XIII. 

PLANS OF RECONSTRUCTION. 

The Emancipation Proclamation — The Amnesty Proclamation and 
Presidential Plan of Reconstruction — Tlie Congressional Plan of 
Reconstruction and debate thereon in the House of Representatives. 

During the year 1862,^ President Lincoln, who 
still clung" to the notion of compensated emancij)ation 
of slaves, had sent a message to Congress, recommend- 
ing the adoption of a joint resolution giving pecuni- 
ary aid to any slave state that might adopt the grad- 
ual abolition of slavery. On May ninth, he issued a 
proclamation countermanding an order of General 
Hunter by which the slaves in his department had 
been declared free ; and, on July twelfth, he had 
addressed an appeal to the representatives from the 
Border States, to sustain him in his efforts towards 
gradual and compensated emancipation.^ Whether the 
disappointing response to this appeal convinced the 

^ March 6, 1862. " I recommend the adoption of a joint resolu- 
tion, . . . which shall be substantially as follows .• Resolved, That 
the United States oug-ht to cooperate with any state which may 
adopt gradual abolishment of slavery, giving to such state pecuniary 
aid, to be used by such state in its discretion, to compensate for the in- 
conveniences, public and private, produced by such change of system." 
This resolution passed the Senate and tlie House. McPherson's Hist. 
Rebellion, 209, 210. See also Message of December 1, 1862 : id., 221. 

Slavery was abolished in the District of Columbia by act of Con- 
gress, April 16, 1862. Id., 211, 212. 

^ McPherson's Hist. Rebellion, 213 et seq. 



EMANCIPA TION PROCLAMA TION. 267 
President that he conld no longer hope for the realiza- 
tion of his wishes, and disposed him to adopt another 
course, is not certain. Durin. the ensuing summer, 
he abandoned tins position, and adopting the opinion 
of the radicals that the war was a war against slavery 
and that It would never reach a conclusion satisfactory 
to the North unless it terminated in the abolition of 
that institution everywhere upon the soil and territory 
of the United States, he issued, on September twenty- 
second a pi^clamation to the efPect that, on Januaiy 
1, 1863, all persons held as slaves within any re- 
beUious state should be thenceforward and forever 
free Heretofore, slavery within the limits of a state 
had been universaUy held to be inviolable under the 
Constitution, and notliing betrays the revolutionary 
character of the civil war more clearly than does this 
proclamation. The President would have issued it 
earlier than he had done, if the federal reverses in 
the field had not afforded ground for a misconstrue 
tioii of the act. The first substantial success, the 
battle of the Antietam, called forth the Emancipation 
x^roclamation. 

This proclamation was not satisfactory to the radi- 
cals; it was restricted in its operation to the states in 
rebeUion, and it contained a reiteration of the Presi- 
dent s purpose to recommend a grant of pecuniary aid 
to the Border States for the abolishment of slavery 
within their limits. A reference to what was consid- 
ered the antiquated doctrine of African colonization, 
though in a new guise and under conditions in which 
the freedmen would be set apart and be debarred the 
benefits of citizenship, was also offensive to them. 
When Congress met in December, and the President's 



268 PLANS OF RECONSTRUCTION. 

Message came to be read, it was found that he had 
been as good as his word ; for it contained a recommen- 
dation that an article amendatory of the Constitution 
be adopted, whereby compensation to the emancipat- 
ing states should be provided for by the federal gov- 
ernment, and even the form of this article was set 
forth. These persistent efforts of the President in 
the direction of gradual and compensated emancipa- 
tion had been exceedingly distasteful to the radicals ; 
Hickman, of Pennsylvania, in the debate on the reso- 
lution of March sixth, going so far as to say : " The 
President of the United States cannot be ignorant 
of the fact that he has, thus far, failed to meet the 
just expectation of the party which elected him to the 
office he holds ; and his friends are to be comforted, 
not so much by the resolution itself as by the body 
of the Message, while the people of the Border States 
will not fail to observe that with the comfort to us 
is mingled an awful warning to them." 

Although the promised Emancipation Proclamation 
was but a few days in the future, the past was still 
more certain, and the President's indisposition to ac- 
cede fully to the dictation of the radicals was the rank- 
ling thorn of the moment. Accordingly, on the ninth 
of December, when the bill for the admission of West 
Virginia was under discussion in the House, Thaddeus 
Stevens, in the course of his remarks, thus addressed 
the President over the heads of his hearers : — 

" I hold that none of the states now in rebellion are ^ 
entitled to the protection of the Constitution, and I 
am grieved when I hear those high in authority some- 
times talking of the constitutional difficulties about 
enforcing measures against this belligerent power, and 



STEVENS ASSAILS THE PRESIDENT. 269 

the next moment disregarding every vestige and sem- 
blance of the Constitution by acts which alone are 
arbitrary. I hope I do not differ with the Executive 
in the views which I advocate. But I see the Execu- 
tive one day saying : " You shall not take the prop- 
erty of rebels to pay the debts which the rebels have 
brought upon the northern states. Why ? Because 
the Constitution is in the way. And the next day I 
see him appointing a military governor of Tennessee, 
and some other places. Where does he find anything 
in the Constitution to warrant that ? If he must look 
there alone for authority, then all these acts are flar- 
grant usiu-pations, deserving the condemnation of the 
community. He must agree with me, or else his acts 
are as absurd as they are ujilawfid. . . . Sir, I under- 
stand that these proceedings all take place, not under 
any pretence of legal or constitutional right, but in 
virtue of the laws of war ; and by the laws of nations 
these laws are just what we choose to make them, so 
that they are not inconsistent with humanity. I say, 
then, that we may admit West Virginia as a new 
state, not by virtue of any provision of the Constitu- 
tion, but under our absolute power, which the laws 
of war give us in the circumstances in which we are 
placed. I shall vote for this bill upon that theory, 
and upon that alone ; for I will not stultify myseK by 
supposing that we have any warrant in the Constitu- 
tion for this proceeding." 

The leaven had worked, and the time had come 
when Stevens coidd openly call upon the absolute 
power of Congress ; and the President was warned 
that any policy that claimed the Constitution as its 
foimdation woidd not receive the approval of an om- 



270 PLANS OF RECONSTRUCTION. 

nipotent Congress, which regarded the rebellious states 
not as states but as conquered provinces. The Presi- 
dent was given to understand that, if he persisted in 
his course, there would be two plans of reconstruction 
in the field, — the President's plan and the Congres- 
sional plan. 

During the debate of the twenty-second of January, 
1864, upon a joint resolution explanatory of the con- 
fiscation act, Stevens gave his reasons for denying 
that the Constitution had the least reference to any 
one of the provisions of the bill in question.^ He sup- 
ported his position, as best he could, by quotations 
from judicial decisions and from recognized authorities 
upon the laws of nations. In the course of his argu- 
ment, he was sharply interrogated concerning his views 
of the status of the rebellious states, and of the power 
of the government to punish a state in its corporate 
capacity, but he did not hesitate to avow his position. 
He scouted the Presidential notion of transforming 
rebel states into loyal ones : " The idea that loyal citi- 
zens, though few, are the state, and in state munici- 
palities may override and govern the disloyal millions, 
I have not been able to comprehend. If ten men fit 
to save Sodom can elect a governor and other state 
officers for and against the eleven hundred thousand 
Sodomites in Virginia, then the democratic doctrine 
that the majority shall ride is discarded and danger- 
ously ignored. When the doctrine that the quality 
and not the number of votes is to decide the right to 
govern, then we have no longer a republic, but the 
worst form of despotism. ... It is mere mockery to 
say that, according to any principle of popular gov- 
^ Cong. Globe, 316 et seq. 



THE RADICAL ULTIMATUM. 271 

ernment yet established, a titlie of the resident inhab- 
itants of an organized state can change its form and 
cany on government because they are more holy or 
more loyal than the others. ... If the United States 
succeed, how may she treat the vanquished belliger- 
ent ? . . . Every inch of the soil of the guilty portion 
of this usurping power should be held to reimburse 
all the costs of the war ; to pay all the damages to 
private property of loyal men ; and to create an ample 
fund to pay pensions to wounded soldiers and to the 
bereaved friends of the slain. . . . All this done, and 
yet the half would be undone. ... It is not only our 
right but om* duty to knock off every shackle from 
every limb." While asserting his conclusion that all 
the people and aU the territory of the rebel states 
were " subject to the laws of war and of nations," he 
added, "both while the war continues and when it 
shall be ended." 

Stevens was answered by Wadsworth, of Kentucky, 
who expressed liis astonislmient how any one could 
refer the House to the laws of nations in support 
of this act : " Why, sir," said he, " the usages of na- 
tions in modern times forbid the very means which 
the gentleman would employ, and the whole policy 
which he advocates." Wadsworth agreed with Stevens 
that the war powers were vested by the Constitution 
in Congress, but maintained that the sovereignty lay 
in the people, and that there was no sovereign but 
the people ; that this sovereign had delegated one 
part of the sovereignty to the states and another j)art 
to the federal government ; and that this latter part 
was to be exercised by Congress and not by the Presi- 
dent. " Woe worth the day," he cried, " when 



272 PLANS OF RECONSTRUCTION. 

the American people consent that that portion of the 
sovereignty which they delegated to the states shall, 
by the accident of fortune, or the malice of men, be 
vested in one man, and he the holder of the sword and 
the purse ! . . . These states are in the Union, and 
there is no power short of successfid revolution that 
can drive them out of it ; and it is no longer worth 
while for men of intellect and courage to deny the fact 
— rebellion, double damned as it is, has been met on 
our part and confronted with revolution : a revolution 
of the federal government against the states, of the 
rulers against the people, of the sword against privi- 
lege, of power against liberty." In the course of liis 
remarks, he had said : " If the gentleman from Penn- 
sylvania is as logical in action as in argument, the 
Executive of the United States must meet with his 
determined opposition. I understand him, indeed, in 
the very speech to which I have directed my attention, 
to sneer at the pretence that the Executive of the 
United States is vested with the federal or state sov- 
ereignty at aU." 1 

Although the resolution passed the House by the 
small majority of nine, this majority was sufficient to 
indicate that the party was " catching up " with Ste- 
vens ; the two years which he had allowed to it to do 
so were not much more than half sone. 

This debate may be said to have had its origin in 
the Amnesty Proclamation with which President Lin- 
coln had accompanied his Message at the meeting of 
Congress in the preceding December,^ and which jjro- 
vided that when a number of persons in any of the 

1 Cong. Globe, 467 et seq. 

2 December 8, 1803 : McPherson's Hist. Rebellion, 147. 



THE PRESIDENTIAL PLAN. 273 

states south of the Border States (that is to say, where 
the territory, or the greater part of the territory, was 
in actual possession of the military force of the rebels), 
not less than one tenth in number of the votes cast at 
the Presidential election of 1860, should organize a 
government, under the conditions set forth, such should 
be recognized as the true government of that state. 

The President was the first in the field with his plan 
of reconstruction ; but it was satisfactory to nobody, 
and none raised their voices in its behalf except the 
crowd that thronged the offices and those who were 
expectants of the Administration's favors. Congress 
gave it the cold shoulder, for it was looked uj)on as 
a clear usurpation of powers which belonged to that 
body alone ; and the people did not welcome it, for it 
came to them " in shapeless gear ; " it was a stranger 
to them, and a stranger with no attractive nor even 
propitious demeanor. Democrats and Republicans 
joined in one cry, that it was a creature imknown to 
the Constitution, and both, as if inspired with the 
same motive, fell upon it, stripped it of its raiment, 
and lashed it in mockery naked through the world. 
The stifled and half-muttered dissatisfaction with the 
President that had been growing in his party with 
the expansion of radicalism now burst forth, and his 
shortcomings were exposed in unmeasured terms. All 
that the Democrats had ever accused him of: his 
weakness, his vacillation, his fostering a personal ad- 
ministration and a personal party, his longing for a 
second term of the Presidency, his broken promises 
of the Inaugural Address and of the First Message ; 
his desertion of constitutional principles and consti- 
tutional methods, his illegal arrests, his reliance on 



274 PLANS OF RECONSTRUCTION. 

the military in exclusion of the civil power, his des- 
potic tendencies manifested from the very beginning, 
all were harped upon, until the wonder grew that 
men should have voted for the expulsion of mem- 
bers from the House, when outside of the walls of 
the Capitol their own conduct and language towards 
the President was quite as improper as anything the 
dishonored members had ever done or said inside. 
" There has not been a session but that our first act 
was to validate his infractions of the Constitution and 
the laws." Thaddeus Stevens a year before ^ had pic- 
tured Lincoln " here and there ordering elections for 
members of Congress wherever he finds a little col- 
lection of three or four consecutive plantations in the 
rebel states, in order that men may be sent in here to 
control the proceedings of this Congress, just as we 
sanctioned the election held by a few people at a little 
watering-place at Fortress Monroe." Everything that 
the President' had done in the way of setting up gov- 
ernments in the seceded states was now brought home 
to him in bitterness and derision : " It is a govern- 
ment of proclamations, a ukase government, at the 
South : at the North, it is a ' little bell ' government." 
Congress had in divers ways asserted that it was 
vested with absolute power in time of war : " I think 
differently," retorted Lincoln; "I think that the Coii^ 
stitution vests the commander-in-chief with the law of 
war in time of war." There was antagonism between 
Congress and the President ; he had thrown down the 
gauntlet, and Congress had snatched it up. 

The Republicans in Congress were not slow to 
counteract the measures of the President, and on 
1 December 9, 1862 : Cong. Globe, 50. 



INTERNAL FEUDS. 275 

February 15th, 1864,i Henry Winfer Davis, of Mary- 
land, reported a bill to the House from its Com- 
mittee on rebellious states, to guarantee to certain 
states a republican form of government. The bill 
was founded upon an article ^ of the Constitution to 
which it was intended to give effect. This bill, anx- 
iously looked for by the country, embodied the Con- 
gressional plan of Reconstruction, and was the result 
of much thought and of many efforts to harmonize 
the rival and ever-conflicting factions of the Republi- 
can party, and to consoKdate in one plan the different 
views entertained concerning the status of the rebel 
states and their relations to the federal government. 
For it must not be supposed, from what has been said, 
that the mass of the Republican members had been 
meek and docile followers of the radical leadership, 
or that they looked only to Stevens and his group for 
their ideas and their modes of parliamentary conduct. 
On the contrary, nowhere was there stronger oppo- 
sition to the leadership of the radicals than in the 
Repubhcan ranks ; nowhere were the reproaches of 
radicalism and of " Thad Stevens " and his group 
of agitators more sarcastic and bitter. In fact, the 
majority of the Republican members took great pains 
to pose before the country as men who tolerated the 
" untenable notions of the radicals," but who did not 
accede to them. They claimed vehemently that they 
founded their action on the Constitution : but the 
difficulty with them was that, in point of fact, their 
devotion to the Constitution was lip-service, and that 
they lacked the manliness of Stevens and his follow- 
ers, who openly and trutlifully placed themselves out- 
1 Cong. Globe, 668. 2 Article IV. sect. 4. 



276 PLANS OF RECONSTRUCTION. 

side of a Constitution whicli they could not obey and 
violate at the same time. The consequence was, that 
the Republicans were more at sea than were the Radi- 
cals ; their plans had the confusion and abortiveness 
which always attends the plans of those who say one 
thing and do another, and floundering from step to 
step, they had no resource but to adopt at last the 
plans which were ready at hand, and these were 
those of the Radicals.^ Thus Stevens had substantial 
grounds for the taunt that he was always ahead of 
his party, but that it was sure to catch vip with him. 
In the mean time, the majority of the Republican 
members hugged to themselves the delusion that they 
controlled the party, and pointed to their views of the 
relations existing between the federal government and 
the states in rebellion as evidence of a set of jirinci- 
ples distinct from those of the radicals. These views 
were, that the rebels had not ceased to be citizens of 
the United States, nor their states to be states of the 
Union, but that by maintaining armed resistance to 
the government in virtue of their secession, they had 
rendered themselves incapable of exercising political 
privileges under the Constitution, and that, under the 
clause of the Constitution guaranteeing a republican 
form of government to the states, it was the right 
and duty of Congress to reorganize them, when re- 
duced to its power by means of the military. Their 
plan of reorganization was the one now introduced 
into the House.^ It had been awaited by the country 

^ See Henry Wilson's remarks on the extent of abolitionism, viz. : 
" And I say here now there is not a loyal state, etc. : " June 27, 18G4 : 
Cons'. Globe, 3308. 

^ H. R. 244. The purpose set forth in the title was, " to guaranty 
to certain states whose governments have been usurped or overthrown, 



THE CONGRESSIONAL PLAN. 211 

with great anxiety, and its provisions were as fol- 
lows : — 

The President was authorized to appoint a Provi- 
sional Governor in each of the states declared to be in 
rebellion, and this governor was charged with the civil 
administration until a state government had been or- 
ganized by the people recognized by the President after 
obtaining the assent of Congress. This governor, 
as soon as military resistance to the United States 
had been suppressed, and the people had sidficiently 
returned to their obedience to the federal Constitution 
and laws, was to direct the Marshal to enrol all the 
white male citizens resident in the state, in their re- 
spective counties ; and wherever a majority of them 
took the oath of allegiance, the loyal people of the 
state were to elect delegates to a convention to act 
upon the reestablishment of a state government. 
This convention was required to insert into the state 
constitution these provisions : 1. That no person who 
had held or exercised any civil or military office (ex- 
cej)t offices ministerial, and military officers below a 
colonel), state or confederate, under the usurping 
power, should vote for, or be a member of, the legis- 
lature or governor. 2. Involuntary servitude was 
forever prohibited, and the freedom of all persons 
guaranteed in said state. 3. No debt, state or con- 
federate, created by or under the sanction of the usurp- 
ing power, should be recognized or paid by the state. 
The Provisional government was to certify the adop- 
tion of the Constitution by the convention, and its rat- 
ification by the electors, to the President, who, after 

a republican form of government." See Cong. Globe, 3448, July 1, 
1864, for its provisions. 



278 PLANS OF RECONSTRUCTION. 

obtaining the assent of Congress, was to recognize tliis 
government as the constitutional government of the 
state, by proclamation ; and from the date of such 
recognition, and not before, Senators and Represen- 
tatives and electors for President and Vice-President 
might be elected in such state. Until this reorganiza- 
tion was completed, the Provisional Governor was to 
enforce the federal laws and those of the state which 
were on the statute-book before the act of secession. 

Davis, who had reported the bill, said in its advo- 
cacy : 1 " It is entitled to the supjoort of all upon this 
side of the House, whatever their views may be of the 
nature of the rebellion, and the relation in which it 
has placed the people and states in rebellion toward 
the United States ; not less of those who think the 
rebellion has placed the citizens of the rebel states 
beyond the protection of the Constitution, and that 
Congress, therefore, has supreme power over them as 
conquered enemies, than of that other class who think 
that they have not ceased to be citizens and states of 
the United States, though incapable of exercising po- 
litical privileges under the Constitution, but that Con- 
gress is charged with a high political power by the 
Constitution to guarantee republican governments in 
the states, and that this is the proper time and the 
proper mode of exercising it. It is also entitled to 
the favorable consideration of gentlemen upon the 
other side of the House, who honestly and deliberately 
express their judgment that slavery is dead. . . . 
We are now engaged in suppressing a military usur- 
pation of the authority of the state governments. 
When that shall have been accomplished, there will 
^ Cong. Globe, 1st sess. 38th Congress, Part 4, Appendix, 82. 



DAVIS' SPEECH. 279 

be no form of state authority in existence which Con- 
gress can recognize. Our success will be the over- 
throw of all semblance of government in the rebel 
states. The government of the United States is then, 
in fact, the only government existing in those states, 
and it is then charged to guarantee them republican 
governments. . . . The denial of the right of seces- 
sion means that all the territory of the United States 
shall remain under the jurisdiction of the Constitution. 
If there can be no state government wliich does not 
recognize the Constitution, and which the authorities 
of the United States do not recognize, then there are 
these alternatives, and these only, — the rebel states 
must be governed by Congress till they submit and 
form a state government under the Constitution ; or 
Congress must recognize state governments which do 
not recognize either Congress or the Constitution of 
the United States ; or there must be an entire absence 
of all government in the rebel states, and that is an- 
archy. To recognize a government which does not 
recognize the Constitution is absurd, for a govern- 
ment is not a constitution ; and the recognition of a 
state government means the acknowledgment of men 
as governors and legislators and judges actually in- 
vested with power to make laws to judge of crimes, 
to convict the citizens of other states, to demand the 
surrender of fugitives from justice, to arm and com- 
mand the militia, to require the United States to re- 
press all opposition to its authority, and to protect it 
from invasion against our OAvn armies ; whose Senators 
and Representatives are entitled to seats in Congress, 
and whose electoral votes must be counted in the elec- 
tion of the President of a government which they dis- 



280 PLANS OF RECONSTRUCTION. 

owii and defy. To accept the alternative of anarchy 
as the constitutional condition of a state is to assert 
the failure of the Constitution, and the end of repub- 
lican government. Until, therefore, Congress recog- 
nize a state government, organized under its auspices, 
there is no government in the rebel states except the 
authority of Congress. In the absence of all state 
government, the duty is imposed on Congress to pro- 
vide by law to keep the peace, to administer justice, 
to watch over the transmission of decedents' estates, to 
sanction marriages ; in a word, to administer civil gov- 
ernment until the people shall, under its guidance, 
submit to the Constitution of the United States, and, 
under the laws which it shall impose and on the con- 
ditions Congress may require, reorganize a republican 
government for themselves, and Congress shall recog- 
nize that government." 

Davis perceived the difficulty of going to the root 
of the matter, and removing the cause of the war by 
an amendment to the Constitution prohibiting slavery 
everywhere within the limits of the United States. 
For altogether there were thirty-four states, and it 
would require three fourths of these, or twenty-six, to 
ejffect the alteration. But of these thirty-four states, 
twenty-five only were represented in Congress, so that 
if the needed assent were forthcoming, it would still 
lack validity for the want of one vote. Such would 
be the residt, if the action of all the United States 
were required in order to validate the amendment. 
But even if another view were taken, that it was never 
contemplated that the supreme political power should 
pass away from the government of the United States, 
and that, consequently, the requisite three fourths of 



DAVIS ON THE PRESIDENT'S PLAN. 281 

the states meant three fourths of the states actually 
represented in Congress, which was the view taken 
by Thaddeus Stevens, even then, apart from the 
great delay involved in amending the Constitution, 
it was doubtful that the assent of three fourths of 
the states could be obtained, so long as states like 
New Jersey, Delaware, Maryland, and Kentucky were 
present to refuse their assent. Moreover, although 
success should crown the proposed amendment and it 
should be actually adopted, it would still leave the 
whole field of the civil administration of the states, 
previous to the recognition of state governments, all 
laws necessary to the ascertainment of the will of the 
people, and all restrictions on the return to power of 
the leaders of the rebellion, wholly unprovided for. It 
would not be a remedy for the evils which the bill 
proposed to meet. 

This led him to discuss the Presidential Plan of 
Reconstruction and to expose its shortcomings : " The 
next plan is that inaugurated by the President of the 
United States in the proclamation of the eiglith of 
December, 1863, called the Anmesty Proclamation, 
That proposes no g-uardianship of the United States 
over the reorganization of the governments, no law 
to prescribe who shall vote, no civil functionaries to 
see that the law is faithfully executed, no supervis- 
ing authority to control and judge of the election. 
But if, in any manner, by the toleration of martial 
law, lately proclaimed the fundamental law, under 
the dictatioia of any military authority, or under the 
prescription of a provost marshal, something in the 
form of a government shall be presented, represented 
to rest on the votes of one tenth of the population, the 



282 PLANS OF RECONSTRUCTION. 

President will recognize that, provided it does not 
contravene the proclamation of freedom and the laws 
of Congress ; and to secure that, an oath is exacted. 
Now, you will observe that there is no guarantee of 
law to watch over the organization of that government. 
It may combine all the jjopulation of a state ; it may 
combine one tenth only : or ten governments may 
come competing for recognition at the door of the ex- 
ecutive mansion. The executive authority is jjledged ; 
Congress is not pledged. It may be recognized by the 
military power, and may not be recognized by the civil 
power, so that it would have a doubtful existence, half 
civil and half military, neither a temporary govern- 
ment by laws of Congress, nor a state government ; 
something as unkno^vn to the Constitution as the rebel 
government that refuses to recognize it." 

He further considered the effect of the Presidential 
plan upon the matter of slavery, and demonstrated its 
inefficacy in this respect : as for the oath, it added 
nothing to the legality of the law, nothing to its force. 
On the other hand, the bill under consideration, or 
the Congressional plan, proposed to preclude the judi- 
cial question wliich might be raised of the validity and 
effect of the President's proclamation or by an irregu- 
lar constitutional amendment, by the solution of the 
political question, and this was to be done by the par- 
amount power of Congress to reorganize governments 
in the insurgent states, to impose such conditions as it 
thought necessary to secure the permanence of repub- 
lican government, to refuse to recognize any govern- 
ments then which did not prohibit slavery forever. 
A long and excited debate continued in the House. 

It must be borne in mind that, so far as Congress 



CONGRESS DISTRUSTS LINCOLN. 283 

and the President were concerned, the issue was : 
Which power shall prevail in the reconstruction of the 
states, the unconstitutional and executive power, or 
the constitutional and legislative power ? Congress 
profoundly distrusted Mr. Lincohi. He had hardly 
been warm in his seat when he had begun the arrests, 
sometimes hundreds of miles away from the seat of 
war or where any evil influence could seriously em- 
bari:ass the conduct of military affairs ; he had per- 
sistently meddled with the operations of troojss in the 
field ; he had issued proclamations to which Congress 
had not previously given its assent, and the legisla- 
ture had found it necessary to make its first business, 
on coming together, to validate illegal and unconsti- 
tutional acts, which, if the law and the Constitution 
were to have sway, must be construed as acts of 
usurpation. The excessive prominence which the war 
lent the President was distasteful to the legislators, 
from the fact that it involved his personality, more 
or less, in every act of administration ; while the 
additional fact that he controlled the movements of a 
vast army was a cause of ajoprehension ever present, 
and which betrayed itself in the assertion that the 
President under the Constitution was noininalJy com- 
mander-in-chief of the Army and Navy. Congress 
feared the President and his disposition to exert irre- 
sponsibly his enormous power ; it secretly took to heart 
the constant assertion of the Democrats and their 
proofs that the war had engendered a military des- 
potism and that the President was the despot, and it 
beheved the Wadsworths who cried out, " Woe worth 
the day when the American people consent that that 
portion of the sovereignty which they delegated to the 



284 PLANS OF RECONSTRUCTION. 

states shall, by the accident of fortune, or the malice 
of men, be vested in one man, and he the holder of 
the sword and the purse ! " The contest, therefore, 
was between two parties, and irresponsible power was 
the prize. As far as constitutionality was concerned, 
the President had little to found his claims upon : 
Congress, on the other hand, had a great deal, but 
this was nullified and invalidated by the enormity of 
its claim to absolute power. In fact, the strife was 
one of absolutism and between absolutists, and the 
struggle was for power over a prostrate constitution 
that was trampled upon by the combatants. 

The Democrats, who had become restricted in 
action to a party of mere protest, were not silent, and 
the view that they took of the relations of the re- 
bellious states with the federal government, of the 
powers of Congress and of the true nature of the bill, 
or rather of the Congressional plan then under con- 
sideration, was so lucidly set forth by Pendleton, of 
Ohio,i that a comprehensive view of all sides of the 
question cannot be obtained without taking his re- 
marks into consideration. He opposed the bill, and in 
the following manner : " The gentleman maintains two 
propositions, which lie at the very basis of his views on 
this subject. He maintains that, by reason of this se- 
cession, the seceded states and their citizens have not 
ceased to be citizens and states of the United States, 
though incapable of exercising political privileges 
under the Constitution, but that Congress is charged 
with a high political power by the Constitution to 
guarantee republican government in the states, and 
that this is the proper time and the proper mode of 
1 Cong. Globe, 2105. 



PENDLETON ON EFFECT OF SECESSION. 285 

exercising it. This act of revolution on the part of 
the states has evoked the most extraordinary theories 
upon the relation of the states to the federal govern- 
ment. This theory of the gentleman is one of them. 
The ratification of the Constitution by Virginia estab- 
lished the relation between herself and the federal 
p-overnment : it created the link between her and all 
the states ; it announced her assumption of the duties, 
her title to the rights of the confederating states ; it 
proclaimed her interest in, her power over, her obedi- 
ence to the common agent of all the states. If Vir- 
ginia had never ordained that ratification, she would 
have been an independent state ; the Constitution 
would have been as perfect and the imion between the 
ratifying states would have been as complete as they 
now are. Virginia repeals that ordinance of ratifica- 
tion, annuls that bond of union, breaks that link of 
confederation. She repeals but a single law, repeals 
it by the action of a sovereign convention ; leaves her 
constitution, her laws, her political and social polity 
untouched. And the gentleman from Maryland tells 
us that the effect of this repeal is not to destroy the 
vigor of that law, but it is to subvert the state govern- 
ment, and to render the citizens ' incapable of exercis- 
ing political privileges ; ' that the Union remains, but 
that one party to it has thereby lost its corporate 
existence, and the other has advanced to the control 
and government of it. 

" Sir, this cannot be. Gentlemen must not palter 
in a double sense. These acts of secession are either 
valid or they are invalid. If they are valid, they sep- 
arated the state from the Union. If they are invalid, 
they are void ; they have no effect ; the state officers 



286 PLANS OF RECONSTRUCTION. 

who act upon tliem are rebels to the federal govern- 
ment ; the states are not destroyed ; their constitutions 
are not abrogated ; their officers are committing illegal 
acts, for which they are liable to punishment ; the 
states have never left the Union, but so soon as their 
officers shall perform their duties, or other officers 
shall assume their places, will again perform the duties 
imposed, and enjoy the privileges conferred by the 
federal compact, and this not by virtue of a new rati- 
fication of the Constitution, nor a new admission by 
the federal government, but by virtue of the original 
ratification, and the constant uninterrupted mainte- 
nance of position in the federal Union since that date. 
" Acts of secession are not invalid to destroy the 
Union, and valid to destroy the state governments, and 
the political privileges of their citizens. We have 
heard much of the twofold relation which citizens of 
the seceded states may hold to the federal government 
— that they may be at once belligerents and rebellious 
citizens. I believe there are some judicial decisions to 
that effect. Sir, it is impossible. The federal govern- 
ment may possibly have the right to elect in which 
relation it will deal with them : it cannot deal with 
them at one and the same time in inconsistent rela- 
tions. . . . The seceded states are either in the Union 
or out of it. If in the Union, their constitutions are 
untouched, their state governments are maintained ; 
their citizens are entitled to all political rights, except 
so far as they may be deprived of them by the crimi- 
nal law which they have infracted. This seems incom- 
prehensible to the gentleman from Maryland. In his 
view the whole state government centres in the men 
who administer it ; so that when they administer it 



THE STATE SURVIVES SECESSION. 287 

unwisely, or put it in antagonism to the federal gov- 
ernment, the state government is dissolved, the state 
constitution is abrogated, and the state is left, in fact 
and in form, cle jure and de facto., in anarchy, except 
so far as the federal government may rightfully inter- 
vene. This seems to be substantially the view of the 
gentleman from Massachusetts [Boutwell]. He en- 
forces the same position, but he does not use the same 
language. 

" I submit that these gentlemen do not see with 
their usual clearness of vision. If by a plague or 
other visitation of God, every officer of a state govern- 
ment should at the same moment die, so that not a 
single person clothed with official power should re- 
main, woidd the state government be destroyed ? Not 
at all : for the moment it would not be administered, 
but as soon as officers were elected and assumed their 
respective duties, it would be instantly in full force 
and vigor. 

'•'-. If these states are out of the Union, their state 
governments are stiU in force unless otherwise changed. 
And their citizens are to the federal government as 
foreigners, and it has in relation to them the same 
rights, and none other, as it had in relation to British 
subjects in the war of 1812, or to the Mexicans in 
1846. Whatever may be the true relation of the 
seceded states, the federal government derives no 
power in relation to them or their citizens from the 
provision of the Constitution now under consideration, 
but in the one case derives all its power from the duty 
of enforcing the ' supreme law of the land,' and in the 
other ' to declare war.' " 

Thus Pendleton declared that the seceded states 



288 PLANS OF RECONSTRUCTION. 

were still in the Union, — once a state always a state, 
and that the federal government derived no power to 
reconstruct them from the clause in the Constitution 
guaranteeing- them a republican form of government,! 
inasmuch as having had that form in the first instance, 
and that form being unchanged because it was un- 
changeable by the act of secession, these states pre- 
sented notlimg upon which this clause could operate, 
and was therefore inoperative. If this were not so, 
and the states were out of the Union, then the doc- 
trine of Thaddeus Stevens, that these states were sub- 
ject to the war powers of the federal government, was 
correct. This led him to discuss the claim of Congress 
to absolute power, which he did as follows : — 

" The second proposition of the gentleman from 
Maryland is this. I use his language : ' That clause 
vests in the Congress of the United States a plenary, 
supreme, unlimited political jurisdiction, paramount 
over courts, subject only to the judgment of the peo- 
ple of the United States, embracing within its scope 
every legislative measure necessary and proper to 
make it effectual ; and what is necessary and proper 
the Constitution refers in the first place to our judg- 
ment, subject to no revision but that of the people.' 

" The gentleman states his case too strongly. The 
duty imposed on Congress is doubtless important, but 
Congress has no right to use a means of performing it 
forbidden by the Constitution, no matter how neces- 
sary or proper it might be thought to be. But, sir, 
this doctrine is monstrous. It has no foundation in 
the Constitution. It subjects all the states to the will 
of Congress ; it places their institutions at the feet of 

1 Article IV. sect. 4. 



CONGRESS A DESPOT. 289 

Congress. It creates in Congress an absolute, unqual- 
ified despotism. It asserts the power of Congress in 
changing the state governments to be ' plenary, su- 
preme, unlhuited ' — ' subject only to revision by the 
people of the whole United States.' The rights of the 
people of the state are nothing ; their will is nothing. 
CongTess first decides ; the people of the whole Union 
revise. My own state of Ohio is liable at any mo- 
ment to be called in question for her constitution. 
She does not permit negroes to vote. If this doctrine 
be true. Congress may decide this exclusion is anti- 
republican, and by force of arms abrogate that consti- 
tution and set up another, permitting negroes to vote. 
From that decision of Congress there is no appeal to 
the people of Ohio, but only to the people of Massa- 
chusetts, and New York, and Wisconsin, at the elec- 
tion of Representatives ; and if a majority cannot be 
elected to reverse the decision, the people of Oliio 
must submit. Woe be to the day when that doctrine 
shall be established, for from its centralized despotism 
we will appeal to the sword ! . . . 

" This biU, the avowed doctrine of its supporters, 
sweeps all [the rights of the states] instantly away. 
It substitutes despotism for seK-government ; despot- 
ism the more severe because vested in a numerous 
Congress." 



CHAPTER XIV. 

THE CONGRESSIONAL PLAN OF RECONSTRUCTION. 

The Congressional Plan of Reconstruction — Debate in the Senate — 
Madison on the constitutional guarantee of a republican form of gov- 
ernment — Carlile's remarks upon this guarantee — The President 
•withholds his assent to the Reconstruction Bill — His proclamation 
thereon, and the Manifesto of Senator Wade and Representative 
Henry Winter Davis. 

Not until July first, tliougli it had been reported 
on the twenty-seventh of May, was this bill called up 
in the Senate, when Brown, of Missouri, offered an 
amendment ^ to the effect that the inhabitants of any 
state which had been proclaimed to be in rebellion 
should be incapable of casting a vote for presidential 
electors or of electing Senators or Representatives 
in Congress, until the insurrection was abandoned. 
Wade led off in the debate which opened, and in the 
course of his remarks he said : " What is the relation 
that these seceded states hold to the general govern- 
ment now ? Gentlemen differ widely on that subject. 
It is a most important question, however, to be ascer- 
tained and declared by Congress, for the Executive 
ought not to be permitted to handle this great ques- 
tion to his own liking. It does not belong, under the 
Constitution, to the President to prescribe the rule, 
and it is a base abandonment of our own powers and 
our own duties to cast this great principle upon the 

1 Cong. Globe, 3449. 



WADE'S SPEECH. 291 

decision of the executive branch of the government. 
It belongs to us ; and the House of Representatives, 
in the performance of their duty, have in my judg- 
ment wisely performed this great function. I know 
very well that the President from the best motives 
undertook to fix a rule upon which he would admit 
these states back into the Union. It was not uj)on 
any principle of republicanism ; it would not have 
guaranteed to the states a republican form of govern- 
ment, because he prescribed the rule to be that when 
one tenth of the population would take a certain oath 
and agree to come back into the Union, they might 
come in as states. When we consider that in the light 
of American princijjle, to say the least of it, it was 
absurd. The idea that a state shall take upon itself 
the great privilege of self-government when there is 
only one tenth of the people that can stand by the 
principle is most anti-republican, anomalous, and en- 
tirely subversive of the great principles that underlie 
aU oiu' state governments and the general goverment. 
Majorities must rule, and until majorities can be 
found loyal and trustworthy for state government, 
they must be governed by a stronger hand. It is 
a necessity imposed upon the general government by 
the Constitution itself," 

Such was what a Republican Senator thought of the 
Presidential Plan of Reconstruction. Senator Wade 
avowed his conviction that "once a state of this 
Union, always a state ; you cannot by wrong or vio- 
lence displace the rights of anybody or disorganize 
the state," but he concluded from the constitutional 
clause of guarantee that " if a portion of the people 
undertake to overthrow their government and set up 



292 THE CONGRESSIONAL PLAN. 

another, it is the manifest duty o£ the general govern- 
ment immediately to interfere, and if necessary, to in- 
terpose the strong arm of its power to prevent such a 
state of things. Precisely that state of things is upon 
us," he added, " and this biU proceeds upon that idea, 
and discards absolutely the notion that states may lose 
their rights and that they may be abrogated and may 
be reduced to the condition of territories. It denies 
any such thing as that." 

That Senator Wade was right as far as he went, in 
his views of the relations in which the seceded states 
then stood to the federal government under the Con- 
stitution, cannot be gainsaid, but he was wrong in 
supposing that the facts were such as to warrant an 
application of the clause guaranteeing a republican 
form of government. No portion of the people had 
undertaken to overthrow their state government and 
set up another. On the contrary, the secessionists 
had preserved their state governments in their integ- 
rity, and had confined their efforts in government- 
destroying to the dissolution of the federal Union. 
So far as the state governments were concerned, 
those that had seceded were the same as they had 
been when in the Union ; and that is to say, that they 
were as republican in form as they had ever been. 
There was then no groimd upon which the federal 
government could interfere, and no warrant for it to 
set up a state government. This Carlile, of Virginia, 
in an able answer to Wade, which was characterized 
by a ready and thorough knowledge of the Constitu- 
tion, brought out clearly and distinctly in an argument 
in which his constitutional position was sustained by 
the forty-third number of the Federalist, written by 



MADISON ON THE GUARANTEE. 293 

Madison, and comprising a commentary on the guar- 
antee clause. 

" It may possibly be asked," said Madison, " what 
need could there be of such a precaution, and whether 
it may not become a pretext for alterations in the 
state governments without the concurrence of the 
states themselves. These questions admit of ready 
answers. If the interiDosition of the general govern- 
ment should not be needed, provision for such an 
event wiU be a harmless superfluity only in the Con- 
stitution. But who can say what experiments may 
be produced by the caprice of particular states, by 
the ambition of enterprising leaders, or by the in- 
trigues and influence of foreign powers ? To the 
second question it may be answered that if the gen- 
eral government should interpose by virtue of this 
constitutional authority, it will be of course bound to 
pursue the authority. But the authority extends no 
further than to a guarantee of a republican form 
of government, which supposes a preexisting govern- 
ment of the form which is to be guaranteed." 

Thus far the Federalist, which Carlile proceeded to 
apply to the case in hand, as follows : " I would have 
the government of the United States do nothing that 
it has not the power under the Constitution to do, be- 
cause I believe that the government of the United 
States is a government of limited powers. I believe 
it to be its duty mider the grant of power in the 
Constitution to guarantee the existence of a preexist- 
ing republican government. That government ex- 
isted in South Carolina ; the people have not deter- 
mined — at least before this war they had not deter- 
mined — to have any other form than a republican 



294 THE CONGRESSIONAL PLAN. 

form of government. We had recognized that gov- 
ermnent as a rejiublican form of government by the 
recognition of the state in all its departments and the 
admission of all its national representatives. It is 
made the duty of the government of the United 
States, not of Congress ; and I desire to call the at- 
tention of the Senator to that, because it bears upon 
his assimiption for Congress of power which does not 
belong to the Executive. It is not alone the duty of 
Congress to giiarantee a republican form of govern- 
ment to the people of the several states ; the extent 
of that guarantee is not limited alone to the means 
which Congress may employ ; but the words of the 
Constitution are ' the United States shall guarantee.' 
Hence every department of the government is equally 
bound ; and Congress being the legislative branch of 
course participates to a greater extent in the dis- 
charge of that duty. . . . 

" You have no authority to appoint a governor or 
any civil officer in that state, unless you are com- 
pelled to resort to military power to carry out your 
constitutional obligations and to remove the obstacles 
which are in the way of the exercise of civil authority 
through the agents of the people themselves, which 
they have established by virtue of their existing gov- 
ernment. No such power is given mider any provision 
of the Constitution ; none could have been given with- 
out your entirely changing the whole character of this 
government, which is based upon the fundamental 
principle that the military power should always be 
subordinate to the civil. . . . 

" But, sir, the Senator from Ohio says the Union is 
to be preserved. So say I. Upon what princij)le are 



CARLILE ON THE GUARANTEE. 295 

these states to come back into the Union ? The peo- 
ple, says the Senator from Ohio, will meet you with 
that inquiry. Sir, when was ever such an inquiry 
suggested to the brain of any loyal man in this Union ? 
When ■ was such an inquiry ever put ? Never until 
after a policy different from that which characterized 
the conunencement of this struggle was entered upon 
by the party in power. All said the Union was to be 
restored ; all accepted the struggle as the use of the 
military power of the government in the restoration of 
the Union. What Union ? The Union of the Con- 
stitution. The Union into wliich new states are to be 
admitted. It is not into ' a Union ' but into ' this 
Union ' that the states are admitted. What Union ? 
The Union of the Constitution, none other ; and he 
who seeks to preserve the Union can only do it by an 
observance of the Constitution and the use of the con- 
stitutional means to restore it, not reconstruct it. . . . 
In this Union, created by this Constitution, of limited 
and delegated powers, all prescribed and written in the 
instrument, you propose to exercise your legislative 
power by usurping the rights and liberties of the peo- 
ple, a power wliich all the people you represent could 
not use or could not exert without the destruction of 
the Union which the Constitution formed. There is 
no power in this government, there is no power in 
the parties to tliis government, there is no power in 
all of the states of this Union, to prescribe a consti- 
tution for the little state of Rhode Island. If every 
other state in the Union, the adhermg as well as the 
rebellious states, if every man, woman, and child in 
them were to meet and prescribe a constitution for the 
people of Rhode Island, they would have no power or 



296 THE CONGRESSIONAL PLAN. 

authority to do so under the Union ; and tell me where 
the people's representatives derive the power to do that 
which all the peojjle in their collective capacity, save 
the small minority that constitutes that state, cannot 
do?" 

The amendment was adopted by the close majority 
of one vote, and then the bill was passed on the second 
of July. The House, however, did not concur in the 
amendment, and the Senate receded from it, where- 
upon the bill went to the President for his approval. 
This took j)lace in the very closing hour of the session, 
when the President, in order to facihtate the passage 
of bills, had gone to the Capitol, and in a private room 
was affixing his signature to such bills as were then 
presented to him. What would the President do? 
Woidd he succumb to Congress, acknowledge liimself 
to be in the wrong, recognize the paramount authority, 
the absolute power of the representatives of the states 
and of the people, and sign the bill ? He did nothing 
of the kind, he neither signed nor vetoed it, he pock- 
eted it ; and, indifferent to the strictures upon him of 
Congress, or rather in defiance of this body and of 
public opinion, he adopted a course which no Presi- 
dent had ever taken before, nor has one ever taken 
since then. The Constitution requires that, if any 
bill shall not be returned by the President within ten 
days (Sundays excepted) after it shall have been pre- 
sented to him, the same shall be a law, in like manner 
as if he had signed it, unless the Congress by their 
adjournment prevent its return, in which case it shall 
not be a law.^ Congress had adjourned without the 
bill being signed, and consequently the bill could not 

^ Article I. sect. 7. 



THE PRESIDENT POCKETS THE BILL. 297 

become a law. A President who does not approve of 
a bill, but who has his reasons for not saying so to 
Congress, has it in his power, when it is presented to 
him during the closing days of the session, to prevent 
its becoming a law and at the same time to save him- 
self from officially annulling it, by " pocketing " it, as 
it is vulgarly styled, until the adjournment sine die 
of Congress intervenes and accomplishes his object for 
him. Mr. Lincoln was not and has not been the only 
President who has availed himself of this constitutional 
limitation upon legislation, but he was the only one 
who followed up such action by a proclamation upon 
the subject. This he did with great promptitude. 
When the hour of adjournment came and the bill had 
not been returned with the President's signature, great 
was the wrath of the Republican members of Congress. 
They had been checlanated, and they dispersed to 
their homes in the gloom of discomfiture. Moody and 
silent, their feelings were by no means soothed by the 
recollection that it was a presidential election year, 
that their adversary had already been nominated to the 
presidency, and that it was necessary to maintain a 
placid front. But they were not permitted to chew 
the cud of disappointment in silence ; for, on the 
ninth of July,^ before, in fact, many of the members 
had reached their distant homes, the President broke 
the silence with the thunder he was too ready to use in 
those days, the thunder of a proclamation. He was 
not disposed to allow his foes to take the stump in 
their districts where he woidd not be present to reply, 
without having the first word with the people. The 
Congressional party Cursed " this government of proc- 

'^ The proclamation is dated on the 8th. 



298 THE CONGRESSIONAL PLAN. 

lamations " in their hearts, but there was no help for 
it. The President was beforehand ; he had come out 
best in the game at the Capitol, and now he would 
make good use of his popularity to forestall Congress 
with the people. 

The proclamation began with a recital of the facts 
that, at the late session, Congress had passed a bill 
to guarantee to certain states whose governments had 
been usurped or overthrown, a republican form of 
government, and that this bill had been presented to 
the President for his approval less than one hour be- 
fore the sine die adjournment of the session, and had 
not been signed by hun ; and that the bill contained 
a plan for restoring the states in rebellion to their 
proper practical relation in the Union, which plan ex- 
pressed the sense of Congress upon that subject, and 
which plan it was then thought fit to lay before the 
people for their consideration. Therefore, the Presi- 
dent made known that, as in the preceding December, 
when by proclamation he had propounded a plan for 
restoration, he was unprepared by a formal approval 
of this bill to be inflexibly committed to any single 
plan of restoration ; and while he was also unprepared 
to declare that the free- state constitutions and govern- 
ments already adopted and installed in Arkansas and 
Louisiana shoidd be set aside and held for naught, 
thereby repelling and discouraging the loyal citizens 
who had set up the same as to further effort, or to 
declare a constitutional competency in Congress to 
aboHsh slavery in the states, but was at the same time 
sincerely hoping and expecting that a constitutional 
amendment abolisliing slavery throughout the nation 
might be adopted: nevertheless, he was fully satisfied 



THE WADE AND DAVIS MANIFESTO. 299 

with the system for restoration contained in the bill 
as one very proper for the loyal people of any state 
choosing to adopt it ; and that he was, and at all times 
should be, prepared to give the executive aid and 
assistance to any such people, so soon as military 
resistance to the United States should be suppressed 
in any such state, and the people thereof should have 
sufficiently returned to their obedience to the Consti- 
tution and the laws of the United States, — in which 
cases military governors would be appointed, with di- 
rections to j)roceed according to the bill.i 

It would be impossible to picture the wrath and 
dismay of the adherents to the Congressional plan. 
When they recovered from the blow sufficiently to 
collect their senses, it was resolved that this procla- 
mation of war between the President and Consrress 
should be answered, and accordingly a " protest " or 
rather a manifesto was issued, signed by Senator 
Wade, who had reported the bill in the Senate, and 
by H. Winter Davis, who had reported it in the 
House.2 

It was addressed " To the supporters of the Gov- 
ernment," and it began by saying that they had read 
without surprise, but not without indignation, the 
proclamation of the President, and that it was impos- 
sible to pass in silence this proclamation without neg- 
lecting their duty ; and that, having taken as much 
responsibility as any others in supporting the Admin- 
istration, they were not disposed to fail in the other 
duty of asserting the rights of Congi-ess. That the 
President had not signed the bill, and therefore it 
was not a law, it was nothing ; that the proclamation, 

1 July 8, 1864 : Appendix. 2 Appendix. 



300 THE CONGRESSIONAL PLAN. 

being neither an approval nor a veto, was a document 
unknown to the Constitution of the United States, 
but that, so far as it contained an apology for not 
signing the bill, it was a political manifesto against 
the friends of the government, and so far as it pro- 
posed to execute a bill which was not a law, it was a 
grave executive usurj)ation. 

It then went on to say that it was fitting that the 
facts necessary to enable the friends of the Admin- 
istration to appreciate the apology and the usurpa- 
tion should be spread before them, and in the course of 
this disclosure they revealed some facts which had 
occurred during the time the bill was on its passage 
through Congress, that shed great light on the meth- 
ods adopted by the President and his party to defeat 
the bill, and, with it, their adversaries. The mani- 
festo declared, in contradiction of the facts asserted 
by the President in his proclamation, that, during the 
hour preceding the sine die adjournment, other bills 
had been signed, and that adjournment had been three 
times postponed by the votes of both Houses, and that 
the least intimation of a desire for more time by the 
President to consider this bill would have secured 
a further postponement. Yet the conunittee sent to 
ascertain if the President had any further communi- 
cation for the House of Representatives reported that 
he had none ; and the friends of the biU, who had anx- 
iously waited on him to ascertain its fate, had already 
been informed that the President had resolved not to 
sign it. The time of presentation therefore had nothing 
to do with his failure to approve it. 

Ignorance of its contents was out of the question, 
for the biU had been discussed for more than a month 



ARRAIGNMENT OF THE PRESIDENT. 301 

In the House of Representatives, which passed it on 
the fourth of May : it had been reported to the Sen- 
ate on the twenty-seventh of May, without material 
amendment, and had passed the Senate absolutely 
as it came from the House, on the second of July, 
Indeed, at the President's request, a draft of a bill 
substantially the same in material points, and identi- 
cal in the points objected to by the proclamation, had 
been laid before him for his consideration in the win- 
ter of 1862—1863. There was therefore no reason to 
suppose that the provisions of the bill took the Presi- 
dent by surprise. On the contrary, there was reason 
to believe them to have been so well known that this 
method of j)reventing the bill from becoming a law 
without the constitutional responsibility of a veto had 
been resolved on long before the biU had passed the 
Senate. For the writers had been informed by a 
gentleman entitled to entire confidence that, before 
the twenty-second of Jmie, in New Orleans, it was 
stated by a member of General Banks' staff, in the 
presence of other gentlemen in official position, that 
Senator Doolittle had written a letter to the depart- 
ment that the House Reconstruction BiU would be 
staved off in the Senate to a j)eriod too late in the 
session to require the President to veto it, and that 
Mr. Lincohi would retain the bill, if necessary, and 
thereby ensure its defeat. The wi-iter asserted that 
the experience of Senator Wade, in his various efforts 
to get the bill considered in the Senate, was quite in 
accordance with that plan ; and that the fate of the 
bill had been accurately predicted by letters received 
from New Orleans before it had passed the Senate. 
Had the proclamation stopped there, continued 



302 THE CONGRESSIONAL PLAN. 

Wade and Davis, it would have been only one other 
defeat of the will of the people by executive perver- 
sion of the Constitution. But it goes further ; and 
the manifesto proceeds, rather hysterically, to pick the 
proclamation to pieces, to comment ujion it, paragraph 
by paragraph, and to expose its weakness as well as 
the unconstitutional measures in general of the Presi- 
dent and the Administration. In speaking of the 
governments already set up by the President, it did 
not mince matters : " The President persists in recog- 
nizing those shadows of governments in Arkansas and 
Louisiana which Congress formally declared should 
not be recognized, — whose representatives and sena- 
tors were repelled by formal votes of both Houses of 
Congress, — wliich it was declared formally should 
have no electoral vote for President and Vice-Presi- 
dent. They are mere creatures of his will. They are 
mere oligarchies, imposed on the people by military 
orders under the form of election, at wliich generals, 
provost-marshals, soldiers, and camp-followers were the 
chief actors, assisted by a handful of resident citizens, 
and urged on to premature action by private letters 
from the President. In neither Louisiana nor Ar- 
kansas, before Banks' defeat, did the United States 
control half the territory or half the population. In 
Louisiana, General Banks' proclamation candidly de- 
clared : ' The fundamental law of the state is martial 
law.' On that foundation of freedom he erected 
what the President calls ' the free constitution and 
government of Louisiana.' But of this state, whose 
fundamental law was martial law, only sixteen par- 
ishes out of forty-eight parishes were held by the 
United States ; and in five of the sixteen we held 



THE FARCES CALLED ELECTIONS. 303 

only our camps. . . . At the farce called an election, 
the officers of General Banks returned that 11,346 
ballots were cast ; but whether any or by whom, the 
people of the United States have no legal assurance; 
but it is probable that 4000 were cast by soldiers or 
employes of the United States, military or municipal, 
but none according to any law, state or national, and 
7000 ballots represent the state of Louisiana. 

" Such is the free constitution and government of 
Louisiana ; and like it is that of Arkansas. Nothing 
but the failure of a military expedition deprived us of 
a like one in the swamps of Florida ; and before the 
Presidential election, like ones may be organized in 
every rebel state where the United States have a camp. 
The President, by preventing this biU from becoming 
a law, holds the electoral votes of the rebel states at 
the dictation of his personal ambition." 

The manifesto was a lengthy document, and dis- 
cussed the claim of Congress to the exclusive right 
of reconstruction of the seceded states, the subject of 
emancipation, the " dictatorial usurpation " of the 
President, and the illegality of the special oath pre- 
scribed in the Amnesty Proclamation, and concluded 
with the following threat : " The President has greatly 
presumed on the forbearance which the supporters of 
his Administration have so long practiced, in view of 
the arduous conflict in which we are engaged, and the 
reckless ferocity of our political opponents. But he 
must understand that our support is of a cause and 
not of a man ; that the authority of Congress is para- 
mount and must be respected ; that the whole body of 
the Union men of Congress will not submit to be im- 
peached by him of rash and unconstitutional legisla- 



304 THE CONGRESSIONAL PLAN. 

tion ; and if he wishes our support, he must confine 
himself to his executive duties — to obey and execute, 
not make the laws — to suppress by arms armed re- 
bellion, and leave political reorganization to Con- 
gress. . . . Let them (the supporters of the govern- 
ment) consider the remedy of these usurpations, and, 
having found it, fearlessly execute it." 

Lincoln received this counterblast with perfect se- 
renity. This kind of talk was not a new thing to him, 
and he could snap his fingers at the threat which con- 
cluded the manifesto. He had seen the irreconcilables 
in Congress organize into opposition against him, and 
had watched tliis opposition develop day by day until 
it controlled the floor of Congress. He had witnessed 
the rejection of the state governments which he had set 
up, and he had heard the leaders, one after another, 
in the same breath, denounce him and his belongings, 
and claim paramount authority in themselves to do as 
they pleased. As for the abuse, he was used to that, 
which, after all, was nothing more than what the 
Democrats and Wendell Phillips had been saying of 
him all along ; and as for the unconstitutionality of his 
course, it did not he in the mouths of those who recog- 
nized the Constitution only when they would use it as 
a club to find fault with him on the score of irrev- 
erence towards that instrument. The contest was a 
strife for power between parties neither of whom re- 
garded the Constitution as sacred, and the gist of 
this episode lay in the complaint which escaped Wade 
and Davis, when they exclaimed ; " Congress passed a 
bill ; the President refused to approve it, and then 
by proclamation puts as much of it in force as he sees 
fit, and proposes to execute those parts by officers un- 



CONGRESS OUTWITTED. 305 

known to the laws of the United States, and not sub- 
ject to the confirmation of the Senate." 

In tliis cry of despair, the truth was told. Lincoln 
had patiently waited for the passage of the biU which 
was to lay before the country the long-promised Con- 
gressional Plan of Reconstruction. Then he had put 
it in his pocket, and, flushed with his success, he had 
proclaimed to the world that he had converted to his 
own use the property of the legislature, and that so 
much of it as suited his purposes he would keep, and 
the rest he would throw away. He was sure of his 
ground ; he had been nominated for the Presidency, 
and his election was a foregone conclusion. The con- 
ditions were such that the malcontents must eat their 
leek, and sup^sort him or be ostracized. It was too 
true : all that Congress could show, after its struggle 
for a whole session with the President, was that it had 
been outwitted. 



CHAPTER XV. 

THE CONGRESSIONAL PLAN OF RECONSTRUCTION 

CONTINUED. 

The debate in the House on the Reconstruction Bill — Last speech of 
Henry Winter Davis — Failure of Ashley's substitute. 

When Congress met in December, the President 
had been reelected by the votes of all of the twenty- 
five states but three ; the electoral votes of eleven 
states not having been counted. The signs of downfall 
on the side of the rebeUion were multiplying thick and 
fast ; but the North, far from relaxing her efforts in 
the field, redoubled them. The eyes of the country 
were now riveted upon the armies and the President ; 
and what was going on in Congress became of second- 
ary importance. There was no need to follow up the 
discomfited party that dis2)uted the possession of power 
with the President, and accordingly the annual mes- 
sage made but a bare allusion to the reconstructed gov- 
ernments of the South, Arkansas and Louisiana, and 
was absolutely silent respecting any plan of recon- 
struction. But the opportunity presented by his com- 
plete victory over the opponents of the amendment to 
the Constitution, abolishing slavery throughout the 
United States, which the President had recommended 
at the preceding session of Congress, and which 
had been rejected, was taken advantage of for a rec- 
ommendation to reconsider and pass that measure. 
Notwithstanding the Congress was the same as the one 



A SUBSTITUTE. 307 

whicli, less than eight months before, had recorded its 
rejection of the amendment, the House had now be- 
come converted to the views of the President so far as 
to contradict its record, and to pass the joint resolu- 
tion adopting the amendment by a vote of one hundred 
and nineteen to fifty-six. 

With the waning forces of the Confederacy daily 
spurring Congress to action, the subject of recon- 
struction more and more engaged the attention of 
this body. On December 15, 1864, Asliley reported 
in the House the bill which had met with such con- 
temptuous treatment at the hands of the President at 
the close of the preceding session, but, upon one pre- 
text or another, it went over until January 16, 1865, 
when Asliley offered a substitute, with instructions 
from the Select Committee on rebellious states to ask 
that it might be substituted for the origmal bill, and 
it was so ordered. This substitute expressly recog- 
nized the governments of Louisiana and Arkansas, 
and provided that no confederate officer above the 
grade of colonel should vote for or be a member of 
the legislature, or governor ; that involuntary servi- 
tude be forever proliibited, and equal rights before the 
law be guaranteed ; that no debt, state or confederate, 
created during the rebellion should be recognized; 
and that all acts, judicial or legislative, for the confis- 
cation or forfeiture of debts or property of any loyal 
citizen of the United States, should be null and void. 
Several amendments were proposed, and another sub- 
stitute was offered by Eliot, of Massachusetts. 

The next day, further consideration was postponed 
until February seventh, notwithstanding Davis' dole- 
ful assertion that " A vote to postpone is equivalent 



308 CONGRESSIONAL RECONSTRUCTION. 

to a vote to kill tlie bill." On February seventb, it 
was again moved to postpone for two weeks further. 
On February twentieth, the House debated the bill 
earnestly,^ and on the next day, Ashley withdrew the 
motion which he had made to recommit the bill to the 
committee, and withdrew also Davis' bill, and intro- 
duced another. 

Kelley led off in one of those long and tedious ha- 
rangues which no one listens to nor reads, and which 
are to be found nowhere in such profusion as in the 
reports of the congressional debates. Dawes followed 
in opposition to the bill, and so did Eliot, who had an 
amendment offered, substituting in effect the Presi- 
dential plan for the one contained in the bill. Fer- 
nando Wood followed, and called attention to the fact 
that the title of the bill assumed that the states in 
rebellion had not a republican form of government, 
and contended that the bill provided for anything but 
such a form. He was frequently taken to task by 
Smith, whose position can readily be known from the 
fact that he asserted that the proper custodian of the 
rights and interests of the loyal people in the rebel- 
*lious states was the President ; the truth of which 
assertion was denied by Wood, who maintained that 
the President was not the custodian of the rights of 
any portion of the states, but that when he interfered 
with civil rights, and the rights of the people, acting 
in their sovereign capacity to make their own constitu- 
tion and laws subject to the Constitution of the United 
States, he was guilty of usurpation ; that the Consti- 
tution imposed certain executive duties on the Presi- 
dent which he was to perform merely as an executive 
1 Cong. Globe, 934 et seq. 



THE BILL REVIVED. 309 

authority. Le Blond also spoke in opposition to the 
bill. At this stage, Ashley withdrew the substitute 
and fell back on the original bill with modifications. 
This bill did not recognize Louisiana or Arkansas. 
In withdrawing the substitute, Ashley frankly re- 
vealed the schism in the Republican party. The sub- 
stitute, he said, had been a compromise measure, by 
which he had sought to conciliate those whose sen- 
sibilities had been wounded by the action of the Presi- 
dent when he pocketed the original bill at the close of 
the precedmg session. In order to secure universal 
suffrage to the liberated blacks, he had consented to 
the conditional recognition of Louisiana, Arkansas, 
and Tennessee. But he had failed to effect a com- 
promise, and therefore he offered again the original 
bill, with a provision that the governor shoidd execute 
such laws only of the old states as related to the 
protection of persons and property, and that all laws 
inconsistent with this bill, and all laws recognizing 
the relation of master and slave, shoidd not be en- 
forced. He would not recognize the governments of 
Louisiana unless he coidd secure negro suffrage. At 
the same time, he had little hope of the success of 
this bill ; for it was very clear to his mind that no 
bill providing for the reorganization of loyal state 
governments in the rebel states coidd pass this Con- 
gress. 

Henry Winter Davis then followed in one of the 
most characteristic speeches of his hfe, and the last 
important address that he made to the House. He, 
too, had no hope of the bill passing. His words 
breathed unconquerable detestation and defiance of 
President Lincoln. It was the defiance of a proud 



310 CONGRESSIONAL RECONSTRUCTION. 

spirit that recognized the fate wliich awaited hira, 
but of one which wovdd never kiss the rod that smote 
him.^ He dwelt upon two alternatives as the result 
of the bill failing to pass : either sixty-five represen- 
tatives and twenty-two senators would claim admission 
from the South when the war was over, and woidd 
be entitled to admission ; or the servile tools of the 
Executive woidd be there to embarrass legislation, 
humble Congress, degrade the name of republican 
government for two years, and then the natural ma- 
jority of the South, rising indignantly against that 
humiliating insidt, would swamp Congress with rebel 
representatives and be its masters. These were the 
alternatives, and there would be no middle ground. 

For the members who had voted for the bill in the 
preceding session, but who, he knew, had deserted 
him, and were waiting for him to cease speaking in 
order to vote against it, his contempt was unmeasured. 
That they should have discovered since the vote of 
the preceding session that the bill violated the prin- 
ciples of republican government and sanctioned the 
enormities of slavery was quite as remarkable as that 
these features should have been overlooked before that 
vote : but they had been neither overlooked before 
nor discovered since. The vote was before a pending 
election : it was the will of the President which had 
been discovered since. The weight of that species of 
argument he was not able to estimate : it bade defi- 
ance to every rule. It was that subtle, pervading 
epidemic of the time that penetrated the closest argu- 
ment as spirit penetrated matter ; that diffused itself 
with the atmosphere of authority, relaxing the energy 
1 Cong. Globe, 2d Sess. 3Sth Cong., 969, 



DAVIS' LAST SPEECH. 311 

of the strong, bending down the upright, diverting 
just men from the path of rectitude, and substituting 
the wiU and favor of power for the will and interest 
of the 23eople, as the rvJe of legislative action. He 
addressed the House as follows : i " The bill which is 
now the test, to which amendments are pending, is 
the same bill which received the assent of both Houses 
of Congress at the last session, with the following 
modifications, to suit the tender susceptibilities of gen- 
tlemen from Massachusetts. . . . There has been one 
section added to meet the present aspect of public 
affairs ; that section authorizes the President, instead 
of pursuing the method prescribed in the bill in refer- 
ence to the states where military resistance shall have 
been suppressed, in the event of the legislative author- 
ity under the rebellion in any rebel state taking the 
oath to support the Constitution of the United States, 
annulling their confiscation laws and ratifying the 
amendment proposed by this Congress to the Consti- 
tution of the United States, before military resistance 
shall be suppressed in such state, to recognize them 
as constituting the legal authority of the state, and 
directing him to report those facts to Congress for its 
assent and ratification. With these modifications, the 
bill which is now the test for amendment is the bill 
which was adopted by this House at the last ses- 
sion. . . . 

" It is only the House itself that can reverse that 
judgment and impeach its assertion of its own powers. 
Nor need I trouble myself to answer the arguments of 
the gentlemen who at the last session voted for this 
bill, and who, in the quiet and repose of the interven- 
1 February 21, 1865 : Cong. Globe, 969, 970. 



312 CONGRESSIONAL RECONSTRUCTION. 

ing period, have criticised in detail the language, and, 
not stopping there, have found in its substance that 
it essentially violates the principles of rejDubhcan gov- 
ernment and sanctions the enormities of the laws with 
which the existence of slavery has covered and defiled 
the statutes of every rebel state. That these discover- 
ies should have been made since the vote of last ses- 
sion is quite as remarkable as that they shoidd have 
been overlooked before that vote. But they were 
neither overlooked before nor discovered since. The 
vote was before a pending election. It is the will of 
the President which has been discovered since." 

This sarcasm was directed particularly towards 
Dawes and Eliot, of Massachusetts. He then pre- 
dicted the course events woidd take : that by the next 
December, possibly by the fourth of July, the rebellion 
would be ended, and sixty-five representatives and 
twenty-two senators from the subjugated states would 
be claiming admission. This consequence, which the 
Democrats would have witnessed with equanimity, 
was fraught with horror to the speaker, who exclaimed : 
" I am no prophet, but that is the history of next De- 
cember, if this bill be defeated ; and I expect it not 
to become a law." 

Should, however, the President do what Davis 
averred that there was not the least reason to suppose 
that he desired to do, namely, treat those who held 
power in the South as rebels and not as governors or 
legislators, and then set to work to hunt out the pliant 
and supple " Union men," so-called, who had cringed 
before the storm, but who would be willing to govern 
their fellow-citizens under the protection of United 
States bayonets ; should " representatives like what 



PROPHETIC WARNINGS. 313 

Louisiana lias sent liei-e, witli such a backing of votes 
as she has given, appear here at the doors of this hall, 
whose representatives are they ? ... In Louisiana 
they are the representatives of the bayonets of Gen- 
eral Banks and the will of the President, as expressed 
in his secret letter to General Banks. If you admit 
such representatives, you must admit, on the same 
basis and under the same influences, rej)resentatives 
from every state from Texas to Virgmia. ... If the 
rebel representatives are not here in December next, 
you will have here servile tools of the Executive who 
will embarrass your legislation, humble your Congress, 
degrade the name of republican government for two 
years, and then the natural majority of the South, ris- 
ing indignantly against that humiliating insult, will 
swamp you here with rebel representatives, and be 
your masters. These are their alternatives, and there 
is no middle ground. . . . 

" Sir, my successor may vote as he pleases. But 
when I leave this haU, there shall be no vote from the 
third Congressional District of Maryland that recog- 
nizes anything but the body and mass of the people 
of any state as entitled to govern them, and to govern 
the people that I represent. And they who may wish 
to substitute one tenth, or any other fractional minor- 
ity, for that great power of the peojjle to govern may 
take, and shall take, the odium. Ay ! I shall brand 
it upon them that in the middle of the nineteenth cen- 
tury, in the only free repubhc that the world knows, 
where alone the principles of popular government are 
the rules of authority, they have gone to the dark ages 
for their models, reviving the wretched examples of 
the most odious governments the world has ever seen. 



314 CONGRESSIONAL RECONSTRUCTION. 

and propose to stain the national triumph by creating 
a wretched, low, vulgar, corrupt, and cowardly oKgar- 
chy to govern the freemen of the United States — the 
national arms to giiarantee and enforce their oppres- 
sions. Not by my vote, sir ; not by my vote ! " 

Thus bitterly, and not without a touch of pathos, 
did the author of that which was known far and wide 
as " the Reconstruction Bill " breathe his forebodings 
of the future and his defiance of the President. He 
and Thaddeus Stevens had united in moving the reso- 
lution for a special committee, and there is little 
doubt that, though they did not agree in their views 
respecting the relations of the seceded states with the 
federal government, they were united in their distrust 
of President Lincoln, and that Davis joined forces 
with Stevens in order to wrest from what he consid- 
ered Lincoln's usurping hand the power over the 
states that were being reduced to submission. ^ The 
Amnesty Proclamation, with its assertion of the right 
of the executive branch of the government to recon- 
struct the seceded states, had startled, not the Demo- 
crats alone who had made it their business to cry 
aloud, but it had startled and shocked the constitu- 
tionists, who, like Davis, still lingered in the Repub- 
lican party, and it had roused to wrath the congres- 
sional radicals whose domain the President had in- 
vaded. Davis could not break with a party in which 
lay his sole influence, nor could he follow the crowd 
who had " discovered the will of the President " since 

^ On the final vote to lay the bill and amendments on the table, 
Stevens voted to do so. Stevens, in his speech in the House, May 2, 
18(;4 : Cong. Globe, 2042, bitterly resented Blair's insinuations of liis 
hostility to the President ; but he protested too much, and he damned 
the President with faint praise. 



THE BILL IS TABLED. 315 

the presidential election. Trumbull and Cowan were 
fast bringing upon themselves the hatred of the men 
from whom they were daily getting farther and farther 
away; Hale had not secured the thrift that follows 
fawning : Davis could not and would not tempt their 
fate. Nor could he join the radicals. He had no- 
where to go, and he was alone. A lover of the Con- 
stitution, albeit an indiscreet one, he was out of place 
among those who were its enemies : he made the mis- 
take of supposmg that good intentions were good prin- 
ciples ; he awoke to find that he had read the Consti- 
tution wrong, and that his alhes had not sought his 
company for the good that was in it, but for the uses 
to which they could put him. The alliance between 
Thaddeus Stevens and Henry Winter Davis was an 
unnatural alliance, and all men but Davis saw what it 
really amounted to. The scales fell from his eyes 
when he beheld Dawes and Eliot in the enemy's camp, 
and heard them protest that they " had never known 
the man." This was the last great effort of Henry 
Winter Davis' life, and it ended in bitter failure ; he 
could hardly be said to have outlived his disappoint- 
ment, for with the closing year he died. • 

The biU was laid on the table by a vote of ninety- 
one to sixty-four. The Democrats, who had nothing 
but a choice of evils, voted with the radicals, inas- 
much as the negro suffrage, admitted m the seventh 
section, was restricted, and because they could not rec- 
ognize the President's unconstitutional reorganization 
of Louisiana and Arkansas. The next day, Ashley 
endeavored again to get his substitute before the 
House, but he was unsuccessful, and the bill was laid 
on the table by a vote of eighty to sixty-five ; not 



316 CONGRESSIONAL RECONSTRUCTION. 

voting, thirty-seven. This was on the twenty-second 
of February, and the session closed on the fourth of 
March without further attempt to pass the Reconstruc- 
tion Bill. Throughout the whole matter, Ashley, as 
the witty Cox did not fail to point out, was on both 
sides of the fence at once. He inserted the word 
" white," yet declared to the House that he would 
vote to strike it out, and he inserted a clause for the 
recognition of Louisiana and Arkansas, and yet 
avowed his disbelief that their reorg-anization was a 
valid one. The fact is, that Ashley, who was bent 
upon negro suffrage, was willing to sacrifice anything 
in the present, so long as he had reason to hope for 
success in the future. " I do not expect to pass this 
bill now," said he. " At the next session, when a 
new Congress fresh from the people shall have assem- 
bled, with the nation and its representatives far in 
advance of the present Congress, I hope to pass even 
a better bill. I know that the loyal people of this 
country will never be guilty of the infamy of inviting 
the loyal blacks to unite with them in fighting our 
battles, and after our triumph deny these loyal blacks 
political rights." ^ 

1 38th Cong. ; Cong. Globe, 1002. 



CHAPTER XVI. 

ENrORCEMENT OF THE PRESIDENTIAL PLAN OP 
RECONSTRUCTION. 

The reconstructiou of Tennessee — North Carolina — Arkansas — 
Louisiana. 

As the reconstruction of tlie states lately in rebel- 
lion originated during the first administration of Pres- 
ident Lincohi, and at the time of his death was in 
process of operation, a brief survey of the progress 
made under his auspices is necessary to understand the 
part performed by his successor, and the attitude as- 
sumed towards " the Presidential plan " by Congress. 

The first one of the rebellious states that was oc- 
cupied by the United States forces to such an extent 
as to compel the federal government to consider the 
subject of actual reconstruction was Tennessee. At 
the close of February, 1862, the Confederates aban- 
doned Nashville, the capital of the state, and on the 
twenty-fifth, the federal army occupied this city. In 
anticipation of this occupation. Gen. U. S. Grant 
had issued, on the twenty-second, an order declaring 
that no courts would be allowed to act under state 
authority, but that all cases coming within reach of 
the military arm would be adjudicated by the author- 
ities which the United States government had estab- 
lished. Martial law was declared to extend over 



318 PRESIDENTIAL RECONSTRUCTION. 

west Tennessee, but whenever a number of citizens 
sufficient to maintain law and order over the terri- 
tory should return to their allegiance, tliis military- 
restriction would be removed. The President about 
the same time appointed Andrew Johnson, a former 
governor of Tennessee, and at this moment holding 
a seat as a member of the United States Senate from 
this state, military governor, with the rank of brig- 
adier-general. 

Thus the first of the military governors, and the 
first agent of the President in the work of reconstruc- 
tion, was the man who was to succeed Mr. Lincoln, 
and who was to take up tliis work as it fell from 
his hands. This nomination was confirmed by the 
Senate on March fifth, and on the twelfth the new 
official reached Nashville, and on the next evening 
made an address, which was afterwards printed and 
circulated under the style of " An Appeal to the People 
of Tennessee." 

It is to be noted that the regidar governor of the 
state, Harris, being a Confederate, had, with his offi- 
cials and the state archives, left the capital for mili- 
tary reasons and betaken himself to Memphis, whither 
he had summoned the legislature. This had left the 
parts of the state which were in the occupation of the 
federal forces without administration of state govern- 
ment. In his address or appeal, Johnson set forth 
these facts, asserting that the state government had 
disappeared ; that the executive had abdicated ; that 
the legislature had dissolved ; and that the judiciary 
was in abeyance, and that the national government 
was at this moment attempting to discharge its obli- 
gations to guarantee to every state a republican form 



RESTORATION NOT RECONSTRUCTION. 319 

of government. The reason and puipose of his ap- 
pointment as military governor should be given in 
his own words, which are as follows : " I have been 
appointed military governor for the time being, to 
preserve the public property of the United States, 
to give the protection of law actively enforced to her 
citizens, and as speedily as may be, to restore her 
government to the same condition as before the 
existing rebellion." 

The great j)rominence attained afterwards by John- 
son as " the Reconstruction President," and the fact 
that he himself was the very first man commissioned 
to undertake the work of rehabihtation, lends to his 
words weight that otherwise they might not have. It 
is the future of reconstruction (now past history) 
that reflects so great importance upon every word and 
action of the military governor of Tennessee. The 
fact, then, that he asserted that he had been ajDpointed 
on account of " the absence of the regular and estah- 
lished state authorities" and for the purpose of 
" restoring her government to the sai7ie condition as 
before the existing rebellion^'' and that his appoint- 
ment was a " military " one, becomes of the highest 
importance when uttered by one who, at a later day, 
when he fell heir to a system of reconstruction of 
which his own appointment was the inception, ap- 
pointed provisional governors, because the rebellious 
states " had been deprived of all civil government," 
and " for the purpose of enabling the loijal people of 
said state to organize a state government." For it 
shows that at the time of his appointment as gov- 
ernor the restoration of the ancient government was 
still the object of President Lincoln's exertion, and 



320 PRESIDENTIAL RECONSTRUCTION. 

that Johnson's military character was the use of the 
military power merely as an instrument to attain this 
end. That his appointment was made with the con- 
sent of the Senate first being had, proves conclusively 
that President Lincoln, as late as the spring- of 1862, 
had not reached the point of appropriating to his sole 
use the powers involved in the work of reconstruction. 
Indeed, the natural inference is that no "Presiden- 
tial Plan " of reconstruction was yet present in the 
mind of the President, that "restoration" of the old 
state governments was still the primary object of 
federal endeavor, and that the part of the executive 
branch of the government was merely to perform such 
duties as would enable the restored sections to send 
senators and representatives to Washington, where the 
rest of restoration woidd be effected or denied by Con- 
gress, according to its decision upon the admission or 
rejection of these members to their respective houses. 
The vacated offices were filled by his appointment 
for the reason that " otherwise anarchy woidd pre- 
vail." 1 

^ It may be well to reproduce here Johnson's views of the rela- 
tions in which the individual citizens of the state stood towards the 
federal government: " Those," said he, " who throug-h the dark and 
weary night of the rebellion have maintained their allegiance to the 
federal government will be honored. The erring and misguided 
will be welcomed on their return. And while it may become neces- 
sary, in vindicating the violated majesty of the law, and in reassert- 
ing its imperial sway, to jjunish intelligent and conscious treason in 
high places, no merely retaliatory or vindictive policy will be adopted. 
To those, especially, who in a private, unofficial capacity have as- 
sumed an attitude of hostility to the government, a full and complete 
amnesty for all past acts and declarations is offered, upon the one 
condition of their again yielding themselves peaceful citizens to the 
just supremacy of the laws. This I advise them to do for their own 
good, and for the peace and welfare of our beloved state. " 



TENNESSEE NEVER OUT OF THE UNION. 321 

As the state of Tennessee was then the theatre 
of conflict between great armies, the territory under 
the protection of one flag or the other was constantly 
chanoing' its dimensions. The conditions of active 
warfare did not permit the inhabitants freedom of 
action sufficient to warrant the reestabHshment of civil 
government, at least on the part of the federals, and 
the military governorship was not productive of the 
benefits hoped for at Washing-ton. That the states 
in rebellion were regarded as being still in the Union, 
and that their ancient governments were objects of 
restoration, is manifest from a speech made by Gov- 
ernor Joluison as late as September, 1863, in which 
he said : " Tennessee is not out of the Union, never 
has been, and never will be out. The bonds of the 
Constitution and the federal power will always pre- 
vent that. This government is perpetual ; provision 
is made for reforming the government and amending 
the Constitution, and admitting states into the Union ; 
not for letting them out of it. . . . The United 
States sends an agent or a military governor, which- 
ever you please to call him, to aid you in restoring 
your government. Whenever you desire, in good 
faith, to restore civil authority, you can do so, and a 
proclamation for an election will be issued as speedily 
as it is practicable to hold one. One by one all the 
agencies of your state government will be set in mo- 
tion. A legislature will be elected, judges will be 
appointed temporarily, until you can elect them at the 
polls ; and so of sheriffs, county-court judges, justices, 
and other officers, until the way is fairly open for the 
people, and all the parts of civil government resume 
their ordinary functions. This is no nice, intricate. 



322 PRESIDENTIAL RECONSTRUCTION. 

metaphysical question. It is a plain, common sense 
matter, and there is nothing in the way but obstinacy." 
It was not until 1864, after the Amnesty Proclama- 
tion of the President had been issued, that the state 
was sufficiently free from hostilities to warrant general 
efforts towards restoration, and at first these efforts 
were altogether fruitless. In the mean time, the mili- 
tary governor never ceased to give assurance of his 
readiness to appoint officers and establish tribunals 
whenever the j^eople showed a desire for civil govern- 
ment and were willing to sustain his appointments. 
At last the State Executive Committee of the Repub- 
lican party issued a call to the people of Tennessee 
for a convention to meet in Nashville, January 9, 
1865, to nominate a ticket which, it was generally 
understood, would consist of the names of persons to 
compose another and later convention. This second 
body was to revise the state constitution and submit it 
to the people for adoption or rejection. The conven- 
tion met on January ninth, but instead of cutting out 
work for a second convention, took the whole thing 
upon itself, and submitted to the people amendments 
abolishing slavery, and prohibiting the legislature from 
making any law recognizing the right of property in 
man. A schedule was likewise adopted and submitted 
to the people, annulling, among other things, the ordi- 
nance of secession and all laws and ordinances of the 
seceded state government, and confirming the appoint- 
ments of Governor Johnson. If these amendments 
and alterations should be adoj)ted and ratified by a 
popular majority on February twenty-second, then an 
election for governor and members of the legislature 
was to be held on March fourth, upon the basis pre- 



NORTH CAROLINA. 323 

scribed by the old act of 1852, and the legislature 
was to meet on April third. The convention nomi- 
nated W. G. Brownlow for governor, and persons for 
senators and representatives in the legislature, as 
well as those who were to hold the elections, and then 
adjourned. On February twenty-second, the proceed- 
ings of the convention were ratified by the people, 
and the military governor made due i^roclamation of 
this fact. Brownlow and the members of the leo;is- 
lature nominated by the convention were chosen at 
the ensuing election without opposition. 

On the third of April, the legislature met at Nash- 
ville, and on the fifth, ratified the pending amend- 
ment to the Constitution of the United States. In 
the mean time, on the foui-th of March, Andrew John- 
son had taken the oath of office, and had become Vice- 
President of the United States. 

The federal forces having obtained a footing in 
North Carolina sufficient, in the view of President 
Lincoln, to warrant an attempt to set up a govern- 
ment under that of the United States, Edward Stan- 
ley was appointed mihtary governor of this state, and 
instructions issued to him from the Secretary of War,i 
similar to those which had been given to Governor 
Johnson, of Tennessee. In these instructions it was 
said, that " the great purpose of your appointment is 
to reestablish the authority of the federal government 
in the state of North Carolina, and to provide the 
means of maintaining peace and security to the loyal 
inhabitants of that state until they shall be al>le to 
establish a civil government. ... It is not deemed 
1 May 2, 1862. 



324 PRESIDENTIAL RECONSTRUCTION. 

necessary to give any specific instructions, but rather 
to confide in your sound discretion to adopt sucli 
measures as circumstances may demand. You may 
rely upon the perfect confidence and full support of 
this department in the jjerformance of your duties." 
Although the people flocked into the lines to hear 
what the governor had to say to them in a public 
address,! they were little persuaded by his appeals to 
them to resume their allegiance, and the war came to 
an end without any progress towards the restoration 
of this state being effected. 

In Arkansas, Jolui S. Phelps, of Missouri, was 
appointed military governor, in 1862, but it was not 
until January 8, 1864, that, under the encourage- 
ment given by the Amnesty Proclamation, a con- 
vention met to revise the state constitution. The 
amended constitution, prohibiting slavery, was ordered 
by the convention to be submitted to the people on 
March fourteenth. Isaac Murphy was appointed pro- 
visional governor, and with other officials was inducted 
into office on January twenty-second. On January 
twentieth, however. President Lincoln, in ignorance 
of the convention and its proceedings, on the petition 
of sundry citizens of the state, ordered General Steele, 
commander of that military district, to hold an elec- 
tion on the twenty-eighth of March, for the election 
of a governor. In this order it is distinctly declared 
" that it be assumed at that election, and thencefor- 
ward, that the constitution and laws of the state as 
hejbre the rehellion are in full force., except that the 
constitution is so modified as to declare that there 
1 June 17. 



ARKANSAS. 325 

shall be neither slavery nor involuntary servitude, 
. . . that, in all other respects, said election may be 
conducted according to said modified constitution and 
laws." 

From this it will appear that even after the Am- 
nesty Proclamation, President Lincoln maintained the 
same view of the state of Arkansas that he had done 
of Tennessee in 1862, viz. : that it was the ancient 
constitution which was to be restored. It is true that 
it was to be modified, and that a strict-constructionist 
would admit as little right in him to modify as to cre- 
ate a constitution, and that even to modify would be to 
destroy. But apart from the constitutionality or un- 
constitutionality of the President's act, and consider- 
ing his view of reconstruction only, it is evident that, 
so far as Arkansas was concerned, his plan recognized 
the ancient constitution as existing, and that no other 
was present to his mind. 

When President Lincoln was notified of the con- 
vention and its work, he left the matter to the com- 
mander of the department, who proceeded to hold 
the election, which returned 12,177 in favor of the 
amended constitution and 226 against it. A governor 
and other state and county officers were also elected, 
and when the legislature assembled, it chose two 
United States senators. 

In 1862, George F. Sheisley was constituted mili- 
tary governor of Louisiana, with the rank of brigadier- 
general, and, by order of the President of the United 
States, a Provisional Court, " which shall be a court 
of record for the state of Louisiana," was constituted, 
and Charles A. Peabody, of New York, was appointed 



326 PRESIDENTIAL RECONSTRUCTION. 

to be the judge to liold this court. The jurisdiction 
of the Provisional Court was illimitable; it compre- 
hended everything that any court can take cognizance 
of, and, moreover, the judgments of this judge were 
to be final and conclusive. His commission was de- 
scribed succinctly in the order itself : " A copy of 
this order, certified by the Secretary of War, and de- 
livered to such judge, shall be deemed and held to be 
a sufficient commission." The reason given in this 
order for its appearance was that the insurrection had 
temporarily subverted and swept away the institutions 
of that state, including the judiciary and the judicial 
authorities of the Union, so that it had become neces- 
sary to hold the state in military occupation. 

The necessity of holding the state in military occupa- 
tion can be readily accepted, when it is recalled that, 
for a long time afterward, the United States could main- 
tain its jurisdiction by force of arms only, upon a very 
circumscribed territory, which, nine months afterward, 
had become narrowed to the range of the federal can- 
non in the works at New Orleans. For nearly two 
years after the constitution of the commission, the 
United States, outside of their military lines, could 
not serve a writ in the whole state of Louisiana. 

In the following year, notwithstanding the disjDuted 
occupancy of the state by armed forces, movements 
for the reorganization of Louisiana as a federal state 
were set on foot. In the early summer of 1863, a 
" committee appointed by the planters of the state of 
Louisiana " appeared at Washington, and represented 
to President Lincoln that they had been delegated to 
seek of the general government a full recognition of 
aU the rights of the state as they existed previous to 



LOUISIANA. 327 

the passage of an act of secession, upon the principle of 
the existence of the state constitution unimpaired, and 
no legal act having transpired that could in any way 
deprive them of the advantage conferred by the con- 
stitution : that under this constitution Louisiana wished 
to return to its full allegiance, in the enjoyment of all 
rights and privileges exercised by the other states 
under the federal Constitution. With the view of 
accomplishmg this object, they requested the President, 
as the commander-in-chief of the army, to direct the 
military governor to order an election on the first 
Monday of November, in conformity with the constitu- 
tion and laws of the state, for all state and federal 
offices. 

The President said in response that, since receiving 
their application, reliable information had reached 
hun that a respectable portion of the Louisiana people 
desired to amend their state constitution, and that 
they contemplated holding a convention for that pur- 
pose. This he deemed a sufficient reason for not 
giving the committee the authority they were seeking 
to use mider the existing constitution. A s to an elec- 
tion in November, there was abundant time, without 
any order or proclamation from him just then. 

This committee represented a party which took the 
position that the state was still a state in the Union, 
but one whose operation, so far as the federal govern- 
ment was concerned, had been suspended : it is also 
apparent that, whatever the views of the President 
on this subject, he was not disposed to commit him- 
self to a recognition either of this principle or of its 
upholders. 

Li fact, the apphcation of this committee to the 



328 PRESIDENTIAL RECONSTRUCTION. 

President was in counteraction of a party which had 
ah-eady taken initiatory steps towards reorganization, 
and which held the contrary notion, that the constitu- 
tion of the state, the state itself, had been subverted 
and destroyed by the act of secession and by the war, 
and that the construction of an entirely new state 
devolved upon the conqueror of the soil. That this 
fundamental notion of reconstruction was not confined 
to the Free State, or radical party, but was entertained 
also by high officials that had been apj)ointed by the 
President, is evident from the opinion which the Chief 
Justice, Peabody, hunself filed during the following- 
year, 1864, in the cases of the United States rs. Rei- 
ter and the United States vs. Louis.^ The words of 
the judge are worthy of quotation, and it may be said 
by way of anticipation that, so far as the relations of 
the states in rebellion to the federal government are 
concerned, the decision of the Supreme Court of the 
United States is exactly contrary. His Honor said : 
" These institutions having been formed, established, 
and administered by the government existing previous 
to and at the time of the conquest confessedly hostile 
to the government of the United States, were the only 
institutions found there at the time the military 
authority of the United States was by force of its 
arms estabhshed there. By the conquest of the coun- 
try, in this case as in others, the previously existing 
government and the power by which it was adminis- 
tered were subverted and swept away, and those of 
the conquering power were substituted in their places. 

^ These two cases, which involved the same question of the juris- 
diction of the court, were considered together. McPherson's Polit. 
Hist. Rebellion. 



CONQUEST. 329 

This is tlie necessary consequence of a conquest of the 
country, — a transfer of the control, government, and 
sovereignty of it from one party to another. They may 
be transferred to and adopted by the new governing 
power, and may be used and operated by it. However 
there may be retained in use by the new governing 
power some of the features or institutions of the gov- 
ernment which has been supplanted, it is nevertheless 
whoUy another government, and derives its life and 
all its vital qualities from a new source, — the new 
sovereignty mstalled by the conquest. A conquest 
necessarily oj)erates the extinguislunent of the power 
of the party conquered in the country which is the 
subject of conquest, and the establislnnent there of 
the power of the conqueror. Without this there is 
no conquest of a country, and there can he none. 

" When the power previously dominant in a coun- 
try has been extinguished by that of another party, 
and rendered incapable of governing it further, and a 
new one has been established in its stead, it is both 
the right and the duty of the party thus coming into 
power to see to it that a government wholesome and 
salutary shall be established and administered ; and 
as in such a case there is only one power, that of the 
new party succeeding, capable of giving and adminis- 
tering the government, it follows that it is the duty as 
well as the right of that power to do it. 

" So the government of the United States having 
conquered and expelled from the territory of coun- 
try theretofore known as the state of Louisiana the 
power by which the government of it had been there- 
tofore administered, and having established there its 
own power, was bound by the laws of war, as well as 



830 PRESIDENTIAL RECONSTRUCTION. 

the dictates of humanity, to give to the territory thus 
bereft a government in the place and stead of the 
one deposed or overthrown : such an one as should 
reasonably secure the safety and welcome of the peo- 
ple thus reduced to subjection, in some manner, not 
inconsistent, to be sure, with the proper interests of 
the governing- power, and the maintenance of it in its 
supremacy there." 

Thus far the Chief Justice of the Provisional 
Court : a court wliich, to use its own words, had " not 
its origin or foundation in any constitutional or legis- 
lative enactment, — was not the creature of any regu- 
larly organized constitutional or legislative body." 
As the President had made the judgment of this 
court final and conclusive, he must have done so in 
the confidence that not only would it administer im- 
mutable justice, but that it would reflect his ideas 
upon the subject of reconstruction : for otherwise, its 
judgments would obstruct the progress of his plan, 
and it is incredible that he should himself raise ob- 
structions to his own work. Nevertheless, in senti- 
ment, as well as in bad English, this judicial opinion 
smacks of Thaddeus Stevens' speech on the admis- 
sion of West Virgmia, and of others of his harangues. 
These views are clear and simple : the preexisting 
government had been " subverted and swept away," 
and no matter how much some of its features might 
be drawn upon in order to constitute the new govern- 
ment, which it was the duty of the conqueror to be- 
stow, this new, " wholesome and salutary government " 
was " wholly another government." 

In Louisiana, most of the territory was in posses- 
sion of the enemy, and the old and established gov- 



FREE STATE COMMITTEE. 331 

ernment of the state was entirely so. The conditions 
were not favorable to a general expression of the 
people in behalf of change in the organic law, and 
even if such an expression could be obtained, it would 
be impossible for latter-day organizers to take the 
first step essential to the establislunent of a new state, 
namely, to oust the old government. The citizens 
were in the confederate army, the confederate armies 
held the territory, and the confederate officials had 
possession of the government. Viewed from the fed- 
eral standpoint, the state of Louisiana presented a 
very restricted theatre of politics : " The city of New 
Orleans," said General Banks in the spring of 1864, 
" is really the state of Louisiana ; " and it seems as if 
Chief Justice Peabody would have exhibited greater 
deference to the reality of the situation if he had for- 
borne to claim jurisdiction on the ground that the 
state of Louisiana had been conquered, or that the 
preexisting government (which was then in operation at 
Shreveport) had been " subverted and swept away." 

There being no constitutional way open to a general 
expression of the people respecting a change of gov- 
ernment, it was necessary for unofficial persons to 
move in the matter and to adopt extraordinary means. 
We have seen that one way was a delegation " of 
planters " to present themselves to the President, and 
it has been remarked already that this movement was 
done in order to counteract another then on foot. 
This primary movement was one undertaken by the 
" Free State General Committee," which was a com- 
mittee representing the different Union associations 
of the city of New Orleans and the adjoining parish 
of Jefferson. This committee, of which Thomas J. 
Durant was chairman, submitted its plans to the Mili- 



332 PRESIDENTIAL RECONSTRUCTION. 

tary Governor, Sliepley, who approved them, and who 
agreed to order a registration of voters, which, under 
the laws in force previous to the secession of the state, 
was exacted in New Orleans only. But this registra- 
tion was to have no reference to old laws : it was to 
be upon a new system requiring an oath of allegiance, 
and it was to extend into the country parishes. The 
governor kept his word and ordered the registration, 
which was suspended, however, by a power the Execu- 
tive had not consulted, the enemy. 

The principle at issue between the two parties, the 
" planters " or conservatives, and the Free State men 
or radicals, can easily be guessed : It was whether the 
ancient state government was the true and present 
government, or no. If it were, then the constitution 
of 1852 was stiU in force, because the ordinance of 
secession and the constitution of 1861, jaresented by 
the confederate convention, were void : if it were not, 
then the constitution of 1852, with its amendments 
of 1861, had been overthrown by the rebellion of the 
people of the state, and the subsequent " conquest " 
had not restored the ancient political institutions. 
The war " has converted into dust and ashes all the 
constitutions which Louisiana has ever made," said a 
radical editor, who expressed the feelings of his party 
by declaring that the war was nothing but a conflict 
of the ideas of liberty and slavery, that there would 
be neither progress nor regress until this conflict was 
settled, and that a convention should be called as soon 
as possible, to declare that Louisiana then was and 
forever would be a free state. 

The validity of the steps taken has been gi*eatly 
disputed, and many of them are clouded with doubt. 
There was much ci^imination and recrimination. The 



THE PRESIDENT RECONSTRUCTS. 333 

Free State men fell out with the President. They 
asserted that when General Shepley took their plan 
to Washington, it had been approved in a cabinet 
meeting-, accepted as the plan upon which the Execu- 
tive was to act, and that an order had actually issued 
from the War Department to the General, as Mili- 
tary Governor, to carry the scheme into effect. Tliis 
they declared had occurred in August, and that not 
only toward the end of this month the President had 
written to General Banks approving of the registra- 
tion and expressing the hope that the work of the 
convention woidd be finished in time to hold the elec- 
tions before the next session of Congress, but that in 
October he had complained that matters were going 
too slow, and that, in view of the military situation in 
Louisiana, he would recognize a state government 
organized by any part of the population under federal 
control. Nothing, however, was done ; no general 
election was held, though it was asserted that a few 
parishes had voted, and persons claiming to have been 
elected members of Congress actually appeared at 
Washington : but they were rejected. 

The registration had proceeded from time to time, 
when, to the consternation of the Free State j)arty, the 
President suddenly took the matter of reconstruction 
in Louisiana entirely into his own hands. The affilia- 
tion of these radicals with the radical faction in Con- 
gress, whose alienation from the President had now 
become a matter of notoriety, would have been reason 
sufficient for the President's action ; there was, how- 
ever, an all-controlling one in the fact that he had re- 
cently issued the Amnesty Proclamation, and by this 
Proclamation had taken upon himself the work of re- 
construction wherever practicable. 



CHAPTER XVII. 

ENFORCEMENT OF THE PRESIDENTIAL PLAN OF 
RECONSTRUCTION CONTINUED. 

The reconstruction of Louisiana continued. 

On the eighth of January, 1864, General Banks, 
commander of this department, announced that he 
should issue a proclamation ordering an election of 
state officers ; and in spite of appeals to him to per- 
mit the Free State men to go on with their convention, 
he did so, on the eleventh of the same month. This 
proclamation, which has been applauded and excori- 
ated by Congress, was addressed to the people of Lou- 
isiana, and set forth that, in pursuance of authority 
vested in him, the commander of the department, 
by the President of the United States, and being 
assured that more than one tenth of the voters had 
taken the oath of allegiance, he invited the loyal citi- 
zens of the state qualified to vote, to assemble on the 
twenty-second of February and elect a governor and 
other state officers, who, for the time being, should 
constitute the civil government of the 'State, under the 
constitution and laws of Louisiana^ except so much 
as relate to slavery, " which being inconsistent with 
the present condition of public affairs, and plainly in- 
applicable to any class of persons now existing within 
its limits, must be suspended, and they are thereupon 
and hereby declared to be inoperative and void." The 
oath of allegiance prescribed by the President's Am- 



LAW MEANS MARTIAL LAW. 335 

nesty Proclamation, with the condition affixed to the 
election franchise by the constitution of Louisiana 
(that is to say, that those entitled to this franchise 
should be white), would constitute the qualifications 
of voters. The registration, so far as it was not in- 
consistent with the proclamations or other orders of 
the President, was confirmed, and an election of dele- 
gates to a convention for the revision of the constitu- 
tion, to be held on the first Monday of April, 1864, 
was announced, and it was stated that arrangements 
woidd be made for the early election of members of 
Congress for the state. An assertion then followed, 
which, however true the fact it contained might be, 
shocked the conservative sentiment of the North, and 
which, when the radicals in Congress espoused the 
cause of the Free State men, served as a text for many 
a radical denvmciation. Why this assertion should 
have stirred the feeling of the people so much can be 
accounted for only by the well-kno^vn quality in hu- 
man nature, which causes men to be shocked by the 
expression of a truth, though they have become per- 
fectly reconciled to the truth itself. Everybody, 
north and south, knew perfectly well that the federal 
possession of any part of Louisiana was purely a 
military one ; they knew that any attempt to organize 
a government must be absolutely dependent upon fed- 
eral bayonets for support. In those days it took the 
people very little while to become familiar with the 
fact that when the federal government obtained a 
footing on southern territory, it kept it at the cost of 
military vigilance and military law ; yet when General 
Banks abrogated so much of the constitution and 
laws of a sovereign state as seemed good to him, and 



336 PRESIDENTIAL RECONSTRUCTION. 

followed UJ3 this iconoclasm with the blunt assertion 
that " the fundamental law of the state is martial 
law," indignation burst out everywhere in the North, 
except at the White House, and among the adherents 
of the President. To say, however, that this indigna- 
tion was general is to say too much. Outside of the 
Democratic party, Mr. Lincoln had the confidence of 
the middle and lower classes : there was his strength, 
and from these classes little or nothing was heard in 
protestation. The fact is, that these classes hardly 
knew what was going on in such a far-away place 
as a gulf state, and if they did, they had no appre- 
ciation of an event so significant as the subversion 
of a state government and the erection of another 
on its ruins by military force : throughout the Re- 
publican party, on the contrary, the avowal that the 
fundamental law of the state was martial law was ac- 
cepted without cavil. The radical faction in Con- 
gress had no popular following outside of their scat- 
tered districts, the Democrats were not hearkened to, 
and thus the mass of the people comprised those 
whose knowledge of constitutional procedure was in- 
dicated by the expression, " Lincoln will do what is 
right." But it was quite different in Congress. 
There the conservative Republican redoubled his ef- 
forts to wrest the power of reconstruction from the 
President's grasp : there the Radical sunk the fact 
that the acts of the conqueror were in consonance 
with his own teachings, in the exasperating one that 
the negro was not made a citizen, and reviled the 
President : and there the Democrat pointed to this 
order of Banks as a realization of his oft-told pro- 
phecies. 



KING STORK. 337 

As for the Free State men in Louisiana, they cried 
aloud in the bitterness of their disappointment, and 
told some truths about Banks and his order. They 
protested that, in asserting the supremacy of martial 
law, this general had declared it to be superior to the 
Constitution, and that he could amend this instru- 
ment when and how he pleased ; that the slavery laws 
which he had rendered inoperative had not been 
touched by the President, and that his assumptions of 
power were dangerous to the liberties of the people 
and to republican government. 

When the election was held on February 22, 1864, 
and Michael Hahn, the government nominee, had 
been returned Governor by an overwhelming major- 
ity, the Free State men declared that the result of 
the election was merely the registration of a military 
edict, and was worthy of no respect from the repre- 
sentatives and Executive of the nation ; that no state 
government had been created by this election, nor had 
one been erected in conformity with the Amnesty 
Proclamation. They set forth these views at length 
in a protest, which concluded as follows : " The com- 
manding general says that he will order the election 
of members of a constitutional convention, and that 
he will, by a subsequent order, fix the basis of repre- 
sentation, the number of delegates, and the details of 
the election. This will put the whole matter under 
military control, and the experience of the last election 
shows that only such a convention can be had as the 
overshadowing influence of the military authority will 
permit. Under an election thus ordered, and a con- 
stitution thus established, a republican form of govern- 
ment cannot be formed. It is simply a fraud to call 



338 PRESIDENTIAL RECONSTRUCTION. 

it the reestablisliment of a state government. In 
these circumstances, the only course left to the truly- 
loyal citizens of Louisiana is to protest against the 
recognition of this pretended government, and to ap- 
peal to the calm judgment of the nation to procure 
such action from Congress as will forbid military com- 
manders to usurp the jjowers which belong to Congress 
alone, or to the loyal people of Louisiana." It will 
not escape the notice of the reader that this lamenta- 
tion emanated from the party which in the beginning 
of its attempts to form a civil government had invoked 
the help of King Stork. 

On February 3, 1864, Banks issued his general 
regulations concerning plantation labor, and on Feb- 
ruary twenty-second, the election, as has been seen, 
was held. The inauguration of Governor Hahn took 
place on March fourth, and on the fifteenth, the 
following letter was addressed to him from Washing- 
ton ; it is brief and emphatic : " Until further orders, 
you are hereby invested with the powers exercised 
hitherto by the Military Governor of Louisiana. 
Yours truly, Abraham Lincoln." The President 
seems to have taken upon himself to make good the 
assertion of the Free State radicals, that " the result 
of the election was merely the registration of a mil- 
itary edict." 

General Banks having issued an order, on March 
eleventh, for an election of delegates to a convention 
to be held " for the revision and amendment of the 
constitution of Louisiana," Governor Hahn, on the 
sixteenth, made proclamation to the sheriffs, and the 
election was had on the twenty-eighth. It assembled 
on the sixth of April, and after a session of seventy- 



REORGANIZATION. 339 

eiglit days, adjourned on July twenty-fifth ; where- 
upon the governor at once issued a proclamation, 
ajDpointing September fifth as the day on which the 
vote of the people should be taken upon the adoption 
or rejection of the constitution which had been sub- 
mitted by the convention. This constitution ordained 
the emancipation of the slaves, and prohibited prop- 
erty in man forever. It made all men equal before 
the law, but did not give the negro the elective fran- 
chise. This constitution was adopted by a vote of 
6836 to 1566. In the city of New Orleans, the vote 
stood 4664 to 789. The government was organized 
on the third of October. 

At this election five congressmen were chosen ,i as 
well as members of the legislature. The members 
of the legislature were almost all Free State men, and 
this legislature subsequently chose seven electors of 
President and Vice-President. How restricted in ter- 
ritory the jurisdiction of these officials and these 
bodies was, may be inferred from the fact that more 
than three fourths of the state was in possession of the 
enemy : and how slow the task of reconstruction, and 
how slight the deference that was paid to this " civil 
government," is apparent from an order of General 
Hurlbut, commander of the district. In this order 
he makes use of the following language : " Uj)on the 

^ In 1862, two conorressmen, Messrs. Hahn and Flanders, were 
elected from the New Orleans districts, according' to instructions for 
an election from President Lincoln to the general commanding. 
These persons were admitted to their seats in the House of Rejjresen- 
tatives by a vote taken February 9, 1863. They were elected for un- 
expired terms whicli expired on the 4th of March ensuing. At the 
next session of Congress two others appeared, but were not recognized 
as members after the organization of the House. 



340 PRESIDENTIAL RECONSTRUCTION. 

official report of the Attorney-General of the state 
of Louisiana, that the ordinary courts of justice are 
insufficient to punish the offenders named by him, and 
in consideration that the state government and courts 
of Louisiana owe their present existence to military 
authority, it is ordered that . . . those arrested for 
peculation and other offences be sent for trial before 
the Military Commission now in session in the city 
of New Orleans . . . and that the Attorney-General 
of the state of Louisiana be admitted to appear be- 
fore said commissioner as public prosecutor." Thus, 
on December 27, 1864, the date of this order, the 
assertion of the radicals, that " under an election 
thus ordered, and a constitution thus established, a 
republican form of government cannot be formed," 
was verified to the letter. 

The five members of Congress elected on the fifth 
of September, 1864, duly presented themselves at 
Washington for admission to the House of Repre- 
sentatives ; their credentials were referred to the 
committee of elections, accompanied by a petition 
remonstrating against the reception of these men as 
members.^ There was also a remonstrance against 
the representation of Louisiana in the Electoral 
College, for the choice of President and Vice-Presi- 
dent of the United States. The legislature had like- 
wise elected two senators of the United States, who 
presented themselves at Washington but were not 
admitted. As for the five congressmen, the com- 
mittee of elections in the House reported that their 
election depended upon the effect which the House 
was disposed to give to the efforts to reorganize a 

1 2d Sess. 38th Cong. : Cong. Globe, Part I. 2. 



A CONGRESSIONAL REPORT. 341 

state government in Louisiana ; that neither a law of 
the state nor of the nation to meet the case was 
possible, and it followed that the power to restore 
a lost state government in Louisiana existed nowhere 
unless in " the people," the original source of all 
political power in this country ; that the people cannot 
be required to conform to any particular mode, for 
that presupposes a power to prescribe outside of them- 
selves, which it has been seen does not exist. There- 
fore, it followed further that if this work of reorgan- 
izing and reestablisliing a state government was the 
work of the people, it was the legitimate exercise of 
an inalienable and inherent right, and, if republican 
in form, was entitled not only to recognition, but also 
to the " guarantee " of the constitution. The com- 
mittee then inquired how far this effort to restore 
constitutional government had been the work of the 
people of Louisiana, and make this astonishing state- 
ment : that " the evidence before the committee, and 
all the information they could obtain, satisfied them 
that the movement which resulted in the election of 
state officers, the calling of a convention to revise 
and amend the constitution, the ratification of such a 
revisal and amendment by popular vote, and the sub- 
sequent election of representatives in Congress, was 
not only par1;icipated in by a large majority, ahnost 
approaching to unanimity, but that the loyal people 
constituted a majority of all the people of the state." 
They also added that the election was held under the 
auspices of a new state organization which had arisen 
from the ruins of the old, in as much conformity to 
law as the nature of the case would permit. 

The conclusions of the committee did not meet the 



342 PRESIDENTIAL RECONSTRUCTION. 

adoption which is the good fortune of statements that 
prove themselves. In fact, where they were not re- 
ceived with indignation, they were hekl in derision. 
In Louisiana itself, the acting governor. Wells, wh» 
had taken the helm, on Hahn receiving an election 
to the United States Senate, issued a proclamation 
on May 3, 1865, which reveals very clearly what he 
thought of the voters in these elections. He says 
that according to the official statement of the Regis- 
ter of voters for the city of New Orleans, nearly five 
thousand persons were at that time registered on the 
books who did not possess the qualifications required 
by law to become voters. He thereupon declared the 
old books for the city of New Orleans to be closed 
from that date, and the registration of aU persons 
contained therein, as well as all certificates issued by 
virtue of the records and conferring the right to vote, 
to be nuU and void ; and he ordered a new set of 
books to be opened, and a new registration to be 
made. This brought down upon him the censure of 
General Banks. 

As for the members of Congress themselves, incre- 
dulity and derision divided the honors when it was 
gravely declared that the applicants for admission 
had been elected by a large majority of the people. 
That the vote approached unanimity was apparent : 
but why should it not be so ? That it constituted a 
large majority was a statement, the audacity of which 
could be surpassed only by the assertion, made in the 
same breath, that " the loyal people constituted a ma- 
jority of all the people of the state." When Wells' 
proclamation was issued, the doubters, or rather the 
scoffers, received it as proof of the truth of their sus- 



A TRAVESTY ON STATEHOOD. 343 

picions. The vote of the whole city of New Orleans 
on the constitution was 5453, and of these 789 were 
against and 4664 for adoption. The scoffers declared 
that the 4664 was the rift'- raff fraudulently regis- 
tered, and that the discrej)ancy of 336 accounted for 
the halt, the blind, and those who were sick and in 
jail. 

The House took no further action on the matter 
than to vote rather surlily a sum of money from the 
applicants sufficient to pay their expenses while in 
Washmgton and on their way home. " If we make 
such large payments to men coming here in this way, 
we do not know when they will stop coming," said 
Washburne. " I ask the gentleman to strike out the 
words ' claimants for seats,' " cried Thaddeus Stevens. 
" I do not want to recognize the idea that anybody on 
earth thinks that these men are entitled to seats." ^ 

The " reconstruction " of Louisiana in 1864 was 
the first instance of the kind under the plan set forth 
in the Amnesty Proclamation ; and the first fruits of 
this plan were scanned with eager and critical gaze 
throughout the Union. The conclusion was extremely 
disappointing. The flagrant use of the military, the 
character of the " loyal people of Louisiana," too 
plainly recognized as the scum of New Orleans, a city 
with the worst of reputations in respect to the vicious 
element that haunts all cities, the fraudulent registra- 
tion by which this class was turned into voters, the 
unblusliing way in which the military commander 
threatened these voters if they were slow to execute 
his will, the lightness of the vote which showed that 
the reputable classes had either rejected amnesty or 
1 Cong. Globe, 2d Sess. 38th Congress, 1395. 



344 PRESIDENTIAL RECONSTRUCTION. 

had refused to go to the polls, the knowledge that 
what was done in the name of the state was applicable 
only to the narrow limits of a single city, — all this 
was more than disappointing, it was shocking. Was 
it for this that the country had condoned the use by 
the President of powers which belonged only to the 
people and to the states in Congress assembled ? The 
organization of camp-followers and of a city's riff- 
raff, the dubbing them with the title of " the tridy 
loyal people," the giving them the name of " citizens," 
and the calling their institution of a military despot- 
ism the " reconstruction of a sovereign state," was too 
much. It did not take the keen-witted people of the 
North long to see this travesty on government in its 
true light, and in spite of the fear of suppression, the 
press began to bristle with sarcasm and to jeer at this 
scarecrow of a state. 

It was not the intelligent few, however, who could 
make their voices heard with effect, nor was it the 
small minority of fearless journals that could rouse a 
people always ready to shift from their shoulders the 
responsibility of being free men. It was in Congress 
that the truth of the matter was exposed, and this 
not so much by the denunciation of the opj^osition, as 
by the quarrelling and bickering of contending fac- 
tions. The truth about Louisiana owed more to the 
quarrels that were going on within the Republican 
party than it did to anything else. 

The reconstruction of Louisiana by the President 
and General Banks did more to precipitate a conflict 
upon Congress than any other single thing had yet 
done. This conflict soon became apparent m many 
things, but in nothing so much as in the debate in the 



CONGRESS FEARS THE PRESIDENT. 345 

House on the bill to guarantee to certain states whose 
governments had been usurped or overtlu'own a re- 
publican form of government, and in the Senate, in 
the debate on the joint resolution declaring that the 
eleven rebelKous states were not entitled to represen- 
tation in the Electoral College,^ and also in the debate 
in the Senate on the joint resolution recognizing the 
government of the state of Louisiana.^ This strife 
woidd have occurred sooner or later, because the 
causes of strife existed within the Republican party ; 
but it occurred when it did because, when the Am- 
nesty Proclamation laid before the country the Presi- 
dential Plan of reconstruction, the congressional party 
for the first time was made aware of the extent of the 
President's assmnption of the powers of Congi-ess, of 
the means by wliich he proposed to secure these pow- 
ers in his own hands, and of his intentions in these re- 
spects for future action. The situation was like that 
existing when an army has been watching the gradual 
encroachment of its opjDonent, but has not yet seen 
any movement which betrayed the force and intention 
of the enemy. When, at last, a decisive movement 
takes place, then it becomes as active in defence or in 
counteracting as its antagonist is in invasion : both 
camps are astir. So it was m this instance : the con- 
gressional faction had been for a long while eying the 
President askance ; he had been assu.ming too much 
power by proclamation in the South, and he had been 
assuming too much power by direct and personal gov- 
ernment in the North. So long as the sympathizers 
with rebellion, the Democrats, and those not belong- 

1 February 1, 1865: Cons'. Globe, 533 et seq. 

2 February 23, 1865 : Cong. Globe, 1061 et seq. 



846 PRESIDENTIAL RECONSTRUCTION. 

ing to the Republican party, were objects of the presi- 
dential suspicion and discipline in the North, the con- 
gressional faction had been deaf to the outcries of the 
victims, and had made it their first business, on meet- 
ing at Washington, to pass acts condoning these out- 
rages and exculpating the President. But that which 
the Democrats on the floor of Congress and on the 
stump had long and constantly predicted, and had 
warned the Republicans to heed, at last took place, 
— the President exceeded his powers with respect to 
reconstruction, and turned his back upon Congress. 
This usurpation of the legislative power was first an- 
nounced emphatically, though indirectly, by the Am- 
nesty Proclamation, and this proclamation became at 
once the cause of opposition in Congress by members 
of the President's own political party. When the 
details of the Louisiana reorganization came to hand, 
it became evident that speedy opposition was neces- 
sary, and that this opposition, to be effective, must not 
stop short of ignoring what the President had done 
already, but should set a bar upon any like procedure 
in the future. This was the first instance of Presi- 
dential reconstruction, and it had ended in that state 
in setting up a military despotism, of wliich the Presi- 
dent was the head. There were ten more states in 
which he could do the same thing, so that, unless pre- 
vented, the end of reconstruction of the rebellious 
states would find him the virtual dictator of the whole 
South. This would not be the end of the matter. 
He had interfered as readily in the affairs of the 
Border States as he had done in Louisiana, and in the 
same character, to wit, that of conunander-in-chief.^ 
^ Senator Powell : Cong. Globe, 2d Sess. 38th Congress, 557. 



THE PRESIDENT A DICTATOR. 347 

He had sustained interference by force of arms in 
these states with the same readiness which he had ex- 
hibited in Arkansas and Louisiana, and the alarmed 
imagination of senators and representatives pictured 
him absohite military dictator of the whole country 
south of Mason and Dixon's line ; while in the North, 
the closed newspaper offices and the prisons crowded 
with political prisoners, against numbers of whom 
there had been no charges, showed what they might 
expect of one so powerful, and of whose readiness to 
exert unconstitutional power there now could be no 
doubt. In the three years and a quarter in which he 
had been President, his course had been strewn with 
unconstitutional acts ; he had left few precedents 
lacking for a future usurper ; the people not only had 
ratified these acts and these precedents by an im- 
mense majority, as the people in all times and places 
have done when they have had the opportunity, but 
they had given him four years more in which to com- 
plete his work ; and worse than all, he had not only 
usurped the powers of the people and of the states, 
but he had shown liis contempt of Congress in a 
manner not to be mistaken. Already, they saw him 
at the head of his troops before the Speaker's chair, 
and heard him cry, " Take away that bauble ! " 

Such were the imaginings of the President's own 
party members in Congress. The radicals mistrusted 
him because he had not gone far enough and had 
not enfranchised, as well as liberated, the Louisiana 
negro ; the conservatives, if such a term can be applied 
to those of the Republican party who were not radical 
abolitionists, opposed him because he had taken to 
himself the exercise of power which properly belonged 



348 PRESIDENTIAL RECONSTRUCTION. 

to them. The third faction, the President's own fol- 
lowing in Congress, had been greatly strengthened in 
spirit and number by the result of the election and 
the consequent new lease of. power, and by the obvious 
wane of the rebellion : this faction included those who 
were known as War Democrats. The President, 
therefore, had no mean support in the Senate and in 
the House, particularly when it is considered that the 
radicals were always ready to sustain any of his meas- 
ures which affected the South and were not repugnant 
to their views of the slave question. 



CHAPTER XVIII. 

ENFORCEMENT OF THE PRESIDENTIAL PLAN OF 
RECONSTRUCTION CONTINUED. 

The reconstruction of Louisiana continued — Debate in the Senate 
upon the recognition of Louisiana as a state. 

On the eighteenth of February, 1865, the Com- 
mittee on the Judiciary, to whom were referred the 
credentials of two persons claiming seats as senators 
from the state of Louisiana, made a report on the sub- 
ject to the Senate, accompanied by a joint resolution 
which recognized the new government of that state as 
the legitimate government,^ and on the twenty-third 
of the same month, this resolution was considered as 
in committee of the whole.^ 

The debate lasted several days, and before it ter- 
minated, many of the leading members of the Senate 
had taken part in a discussion which was not confined 
to the conditions of the state of Louisiana, but which 
embraced even the general question, What is a state ? 
In this discussion the line was drawn sharply between 
the presidential faction, on one side, and the allied 
congressional and radical factions on the other ; the 
former being led by TrumbuU, Henderson, Pomeroy, 
and Doolittle, and the latter by Sumner, Howard, and 
Wade. 

In answer to a question why Arkansas was excluded 
1 Cong. Globe, 903. 2 Cong. Globe, 1011. 



350 PRESIDENTIAL RECONSTRUCTION. 

from the resolution, Trumbull, the chairman of the 
committee reporting, said that the facts were not pre- 
cisely the same in the two states, hut that the principle 
upon which the committee acted, if adopted, woidd be 
applicable to any other state. Sumner at once moved 
to strike out all of the resolution after the enacting 
clause, and to insert a resolution that neither the 
people nor the legislature of a state proclaimed to be 
in insurrection should elect representatives or senators 
to CongTCSS until the President should have pro- 
claimed that armed hostility had ceased in that state, 
nor until its people had adopted a constitution not 
repugnant to the Constitution and laws of the United 
States ; nor until, by a law of Congress, such state 
should have been declared to be entitled to represen- 
tation in Congress. Trumbull objected to this, be- 
cause, being prospective, it would not apply to the 
case in hand, and because it would put it in the power 
of the President to keep out a state forever by refus- 
ing to issue liis proclamation. The Senate thought 
so, too, and rejected Siunner's amendment by an em- 
phatic majority. 

On the day following, Powell continued the debate ^ 
by saying that the object in recognizing Louisiana at 
that time was to allow the state to vote for the pro- 
posed amendment to the Constitution of the United 
States.2 xhe admission of senators and representa- 
tives from Louisiana would be an immediate result of 
the passage of the resolution. 

1 Cong. Globe, 2d Sess. 38tli Cong., 1061. 

2 " Article XIII. Sec. I. Neither slavery nor involuntary servitude, 
except as a punishment for crime whereof the party shall have been 
duly convicted, shaU exist witliin the United States, or any place sub- 
ject to their jurisdiction." 



SENATE DEBATE ON LOUISIANA. 351 

Powell, in a forcible address, objected to the recogni- 
tion on the grounds that the state had never been out 
of the Union, and therefore it needed no recognition ; 
for whenever the facts were established that the peo- 
ple of the state had ceased resistance to the federal 
government, and had determined to be loyal, and a 
majority of them had elected their senators and rep- 
resentatives. Congress should then admit these sen- 
ators and representatives. But he was going to show 
that beyond the possibility of a doubt the people of 
Louisiana who formed this state government had not 
asked of their own free volition, but that they had 
been coerced to do what they did, and that the consti- 
tution presented as the fundamental law was not a 
constitution made by the free suffrages of the people 
of that state. 

This he proceeded to do at length by taking up the 
test oath prescribed by the President and exposing its 
" degrading " character and its unconstitutionality. 
Its unconstitutionality spoke for itself ; the oath was 
a condition precedent to becoming a qualified voter, 
and one feature of it was that a man swore to support 
all the proclamations of the President already issued 
on the subject of slavery, and all the proclamations 
that he might make on that subject in the future. No 
one who was a free man, and who understood his civil 
and poHtical rights, woidd so prostitute himself as to 
take that oath ; there was a large class of loyal men 
in Louisiana who refused to take it ; all such were 
excluded from voting. No senator ever had defended 
that odious feature. He then discussed the one tenth 
minimum of loyalty which the President had laid 
down as a fundamental principle of reconstruction, 



352 PRESIDENTIAL RECONSTRUCTION. 

and observed that one tenth of the voters in 1860, was 
much less than one tenth of those qualified to vote in 
the state, because there never had been an election in 
which all the voters of a state had gone to the polls 
and cast their votes. At the very threshold, then, the 
principle that majorities should rule was repudiated, 
for it was not the majority, but less than one tenth of 
the voters, that was to rule. When the President pre- 
scribed the qualifications of voters, he had amended 
the constitution of the state of Louisiana as it existed 
before the rebellion, and to which his orders had 
referred ; for the qualifications of voters were pre- 
scribed in that instrument. 

Powell then turned his attention to the part per- 
formed by General Banks. There is no need of reca- 
pitulating the account of Banks' misdeeds, but Powell 
cast a ray of light upon one feature of the General's 
procedure which should not be overlooked. He said 
that when Banks made his statement before the Ju- 
diciary Committee, which he did with a great flourish 
of trumpets, and seeming to be animated with that 
kind of zeal which would entitle him to be called, in 
the language of lawyers, " a swift witness," he was re- 
quested to lay before the committee aU his proclama- 
tions and orders. Among these should have been a 
second proclamation which the General had issued ; 
but it was not forthcoming. Then Powell had a reso- 
lution passed by the Senate, calling upon the Presi- 
dent to send it to that body ; but by this time Lincoln 
complied with the requests of Congress when he felt 
like doing so, and when he did not feel in the humor, 
he paid no attention to them. In this instance the 
request of the Senate fell on a deaf ear ; the President 



GENERAL ORDERS NO. S3. 353 

gave no heed to that body. Now Powell remembered 
having read the order soon after it was issued, and in 
a report, made by a committee in the House of Rep- 
resentatives in a Louisiana election case, he found an 
extract from Banks' order which was issued a little 
before the election. Bearing in mind that Banks had 
said before the Committee that he desired to state, in 
the most unqualified terms, that " no effort whatever 
was made on the part of the military authorities to 
influence the citizens of the state either in the selec- 
tion of candidates or in the election of officers, and 
that the direct influence of the government of the 
United States was less in Louisiana than in the elec- 
tion probably of any other state of the Union," the 
following extract from the order in question certainly 
justifies Powell in asserting that Banks was " wholly 
unworthy of confidence when he testified concerning 
this matter." The extract from the order is as fol- 
lows : " Those who have exercised, or are entitled to 
the rights of citizens of the United States, will he 
required to partici])ate in the measures necessary for 
the reestablishment of civil government. . . . Indif- 
ference will he treated as a crime and faction as 
treason" ^ " No wonder," exclaimed Powell, " that 
Banks never brought to our view that odious order 
in which he threatens these people with punishment 
if they do not come and vote ; for that is the plain 
English of it." 

Powell was not quite correct in giving the source 

of this astonishing extract. It is to be found, not in 

a second proclamation, but in the order relative to the 

regulation of labor ^ which is prescribed or suggested 

^ The italics are not Banks'. ^ General Orders No. 23. 



354 PRESIDENTIAL RECONSTRUCTION. 

in the Amnesty Proclamation, and which in this case 
was issued by General Banks.^ Except those clauses 
which relate directly to the military, the order is 
really addressed to master and man, and it adds force 
to Powell's interpretation, that those whom it was 
designed to affect were, in great majority, the semi- 
barbarous slaves lately emancipated by military ser- 
vice and special order. It consists of twenty-five 
paragraphs, of which the concluding seven bristle 
with generalities, and, as may be readily imagined of 
Banks, are sophomoric in style, and are hardly worth 
the trouble of picking to pieces. In the midst of this 
nebulous formation appears the nucleus contained in 
the foregoing extract. It certainly is direful, but it 
must not be forgotten that when Banks prodded with 
the bayonet, he never failed to accompany the inflic- 
tion by telling the victims that civil government must 
and would prevail some day or other. This very para- 
graph closed with an instance in point : " War can 
never cease except as civil governments crush out con- 
test, and secure the supremacy of moral over physical 
power. The yellow harvest must wave over the crim- 
son field of blood, and the representatives of the peo- 
ple displace the agents of purely military power." It 
is surprising that, when the Powells in Congress 
exposed Banks' subordination of the civil to the mili- 
tary authority, the Doolittles and Howes did not point 
to the moral suasion with which he accompanied the 
thrusts of his bayonets. 

Henderson followed. It will be remembered that 
he had strenuously maintained that the rebellious states 
had never been out of the Union, and during the 
1 February 3, 1864 ; An. Cycl. 1863, 596. 



SUMNER SHIFTS HIS POSITION. 355 

course of his remarks there ensued a colloquy between 
him and Sumner, in wliich the senator from Massa- 
chusetts denied that he had ever stated that any act 
of secession took a state out, and that he had always 
said just the contrary, — the government of the state 
had been subverted by secession. " No act of seces- 
sion can take a state out of this Union, but the state 
continues under the Constitution of the United States, 
subject to all its requirements and behests. The gov- 
ernment of the state is subverted by secession." i 
This admission in direct contradiction of his own reso- 
lution was extracted from the senator, and not with- 
out persistent effort, by Henderson, of Missouri, to 
whom Sumner further asserted that, under the con- 
stitutional provision for a guarantee of a repubhcan 
form of government, " it is the bounden duty of the 
United States, by act of Congress, to guarantee com- 
plete freedom to every citizen, and immmiity from all 
oppression, and absolute equality before the law. No 
government that does not guarantee these things can 
be recognized as republican in form according to the 
theory of the Constitution of the United States, if the 
United States are called to enforce the constitutional 
guarantee." ^ Thus Sumner, a radical of the radicals, 
abandoned the position he had formerly occupied along 
with Stevens, respecting the status of the insurrection- 
ary states. He was compelled to acknowledge that they 
were still in the Union ; nevertheless, he continued to 
claim for Congress the power of settling the question, 
and, most significant of all, he proclaimed to the world 
that henceforth a republican form of government was 
incompatible with the existence of slavery, and where 

1 Cong. Globe, 1067. 2 j^. . ij. 



356 PRESIDENTIAL RECONSTRUCTION. 

that institution was a feature of the state, this state 
should not be recognized : thus he saved his radi- 
cahsm. 

Henderson kept pressing Sumner, and at length 
asked him if Congress could interfere with the right 
of suffrage in one of the states of the Union. Sum- 
ner evaded the question by saying that, at the 'pre&ent 
time^ under the guarantee clause, it was the bounden 
duty of the United States by act of Congress to guar- 
antee complete freedom to every citizen and absolute 
equality before the law. No government that does 
not guarantee these tilings could be recognized as re- 
publican. " If the loyal men, white and black, recog- 
nize it, then it will be republican in form." Where- 
upon Henderson quoted Madison's lunitation of this 
guarantee to a preexisting government, and also the 
following passage from the Federalist^ by the same 
authority : " As long, therefore, as the existing repub- 
lican forms are continued by the states, they are guar- 
anteed by the federal constitution. Whenever the 
states may choose to substitute other republican forms, 
they have a right to do so, and to claim the federal 
guarantee for the latter." Henderson, nevertheless, 
sustained the presidential reorganization of Louisiana. 
He thought that when a majority of the people of a 
state pass an ordinance of secession, one of three things 
must be true : either this ordinance is valid ; or the 
loyal minority have a right to institute government 
for their protection ; or, lastly. Congress may proceed 
to govern the state for all time to come, with the hard 
and oppressive hand of mihtary rule. He believed in 
the loyal minority instituting a government for its 
1 Number 43. 



HOWARD ON TUTELAGE. 357 

protection, and, in tlie case of Louisiana, thought that 
the mere fact that General Banks had provided a way 
for the loyal men to express their sentiments did not 
invalidate their action. He admitted that Banks had 
no legal authority to do a great many things that he 
had done, but he declared the question to be. Was this 
constitution the wiU of the loyal men of that state ? 
He then took Howard to task for having said that he 
would keejD the rebellious people in tutelage for five, 
ten, or twenty years. Howard at once interposed, say- 
ing that he had added, " if that length of tune should 
be necessary to reproduce loyalty in a seceded state, 
and thus to restore them to the Union as a loyal peo- 
ple." But Henderson quoted Howard's exact words, 
and referred him to the page of the Congressional 
Globe ^ on which appeared a remark, which, as evi- 
dence of the feeling of some of the northern leaders 
towards the southern people, should be repeated. It is 
thus given : "I never will consent to admit into this 
Union a state, a majority of whose people are hostile 
and unfriendly to the government of my country. I 
prefer to hold them in tutelage (for that is really the 
word) one year, five years, ten years, even twenty 
years, rather than run the risk of a repetition of this 
rebellion, which has cost us so much blood and treas- 
ure." 

Howard might have saved himself the mortification 
of a contradiction by sticking to his text ; for, one 
year afterwards, this assumption and this policy had 
become the groundwork of the congressional action in 
southern reconstruction. 

In this debate Henderson laid down the principles 
1 2d. Sess. 38th Cong. p. 554. 



358 PRESIDENTIAL RECONSTRUCTION. 

of the Presidential Plan so clearly and succinctly that 
his analysis and summary is worthy of reproduction. 
It is as follows : — 

"1. That the seceded states are still in the Union, 
and cannot get out of it except tlirough an amendment 
of the Constitution permitting it. 

"2. The seceded states being still in the Union 
are entitled to claim all the rights accorded to other 
states. 

"3. That each state now in the Union has the right 
to stand upon the form of its constitution as it existed 
at the time of its admission. The people of such 
state may change its constitution, provided they retain 
a republican form of government ; but neither the 
President nor Congress can reform, alter, or amend 
such constitution, nor prescribe any alteration or 
amendment as a condition of association with the 
other states of the Union. The General Government 
may properly lend its aid to enable the people to 
express their will ; but any attempt to exercise power 
constitutionally reserved to the state, beyond what 
may be demanded by the immediate exigencies of 
war, will not tend to restore the Union, but rather to 
destroy our whole system of government. 

" 4. When citizens of a state rebel and take up 
arms against the General Government, they lose their 
rights as citizens of the United States, and they ne- 
cessarily forfeit those rights and franchises in their 
respective states which depend on United States citi- 
zenship. 

" 5. If a seceded state be still in the Union, enti- 
tled to recognition as a state, and a majority of the 
people have voluntarily withdrawn their allegiance, 



HENDERSON'S SUMMARY. 359 

the loyal minority constitute the state and should 
govern it. 

"6. Congress should not reject the governments 
presented, because of mere irregularity in the proceed- 
ings leading to their reorganization. 

" 7. If Congress has no right to make and impose 
a constitution upon the people of any state ; if its 
power extends no further than to guarantee preexist- 
ing republican forms of government ; if the state stiU 
exists, and the loyal men are entitled to exercise the 
functions of its government, it follows that the only 
questions to be examined here are, first, Is the consti- 
tution the will of the loyal men qualified to act ? and, 
second, Is it republican in form ? 

" 8. The constitutions of Louisiana and Arkansas 
are thought to be republican in form, and it is ad- 
mitted that the loyal men of those states respectively 
acquiesce in them. Hence the duty of Congress to 
recognize them, and the duty of each House to admit 
their representatives." 

The first three of these clauses embody principles 
which were acceptable not only to the supporters of 
the Presidential Plan, but also to the Democrats or 
strict-constructionists themselves, who might have ac- 
cepted even the fourth clause were not the language 
susceptible to interpretation so broad that the princi- 
ple contained in the third clause would be endangered 
or even sacrificed. But the remaining clauses would 
certainly be rejected by the Democrats. For, so long 
as the conditions of the fifth clause existed, a Democrat 
would not recognize them at aU as conditions for " re- 
construction : " iintil a majority of the people should 
resume their " allegiance " in good faith, he would re- 



360 PRESIDENTIAL RECONSTRUCTION. 

gard the recognition of the state as out of the question. 
When such majority existed, and manifested its obe- 
dience to the Constitution and the laws, no " recon- 
struction " would be necessary : for all that would be 
necessary for " restoration " of the Union would be 
election of state officers who acknowledged the federal 
government, and the reception of its senators and rep- 
resentatives by the two houses of Congress. Such 
being his view of the case, he would dismiss the sixth, 
seventh, and eighth clauses without further considera- 
tion ; for, if he would never assent to the proposition 
that a minority, however loyal, constituted the state, 
neither would he recognize any proceedings by a power 
other than that of the people of the state for the " re- 
organization," however clear of irregularity, nor even 
admit that the constitution of a state should express 
the will of anybody but the whole people. He would 
say with Powell : " Senators, before they can vote for 
this resolution, must maintain the doctrine contained 
in the President's proclamation of the eighth of De- 
cember, 1863, when he proposed that one tenth of the 
loyal voters of a state, who would comply with the con- 
ditions set forth in his proclamation, should form a 
state government. They must further maintain that 
the President of the United States, of his own voli- 
tion, has power by decretal order to alter the constitu- 
tion of a state. They must maintain further that the 
President of the United States has the power to pre- 
scribe the qualifications of voters and the quahfications 
of candidates for office in the state. They must fur- 
ther believe, not only that the President possesses 
these powers, but that Major-General Banks possessed 
these powers in the state of Louisiana by virtue of a 



SUMNER'S MANIFESTO. 361 

major-general of the army commanding in that dis- 
trict." Assuredly, he could never countenance the 
conclusion that Louisiana and Arkansas should be 
restored to the Union merely for the reasons given by 
the President and his adherents, including Henderson. 
He could almost say with Sumner : ^ " The pretended 
state government in Louisiana is utterly indefensible, 
whether you look at its origin or its character." 

If the leading clauses contain the principles and the 
conditions from which the reconstruction of Louisiana 
and its restoration to the Union are to follow, it is 
indeed difficult to comprehend the logical sequence 
which the whole series of Henderson must have pre- 
sented to the mind of a Democrat. Li fact, this man- 
ifesto of principles did not harmonize with the actual 
proceedings of the President in the reconstruction of 
Louisiana and Arkansas. 

At this stage of the debate, Sumner offered a sub- 
stitute for the resolution of recognition, which embod- 
ied the grounds of opposition entertained by the radi- 
cals to the Presidential Plan, and their demand for 
negro suffrage. It set forth that it was the duty of 
the United States, at the earliest practicable moment, 
to reestablish by act of Congress rejjublican govern- 
ments in those states where loyal governments had 
been vacated by the existmg rebellion ; that this 
important duty was imposed by the Constitution in 
express terms on " the United States," and not on in- 
dividuals or classes of individuals, or on any military 
commander or executive officer, but it must be per- 
formed by the United States, represented by the 
President and both Houses of Congress ; that in de- 
1 Cong-. Globe, February 24, 1129. 



362 PRESIDENTIAL RECONSTRUCTION. 

termining the extent of this duty, and in the absence of 
any precise definition of the term " republican form of 
government," no error would be committed if the con- 
sent of the governed should be insisted upon as the 
only just foundation of government, and that all men 
should be equal before the law ; that it was plain that, 
in the performance of the constitutional guarantee, 
there coidd be no power under the Constitution to dis- 
franchise loyal people, or to recognize any such dis- 
franchisement, especially when it might hand over the 
loyal majority to the control of the disloyal minority ; 
nor could there be any such power to discriminate in 
favor of the rebellion by admitting to the electoral 
franchise rebels who had forfeited all rights, and by 
excluding loyal persons who had never forfeited any 
right ; that the reestablislunent of no state should be 
allowed without proper safeguards for the rights of all 
citizens, and especially without maldng it impossible 
for rebels in arms to trample upon the rights of those 
then fighting the battles of the Union ; that a govern- 
ment founded on military power, or having its origin 
in military orders, coidd not be " a republican form of 
government," and that its recognition would be con- 
trary not only to the Constitution, but to that essen- 
tial principle of government which, in the langiiage 
of Jefferson, establishes " the supremacy of the civil 
over the military authority ; " that in the states whose 
governments have already been vacated, a government 
founded upon an oligarchical class could not sustain 
itself without national support ; that such a govern- 
ment was not competent, at that moment, to discharge 
the duties and execute the powers of a state, and that 
its recognition as a legitimate government would tend 



MILITARY GOVERNMENTS UNREPUBLICAN. 363 

to enfeeble tlie Union, to postpone the day of recon- 
ciliation, and to endanger national tranquilKty ; that 
considerations of expediency are in harmony with the 
requirements of the Constitution and the dictates of 
justice and reason, especially since colored soldiers 
had shown their mihtary value ; that as their muskets 
had been needed for the national defence against reb- 
els in the field, so would their ballots be yet more 
needed against the subtle enemies of the Union at 
home, and that without their support at the ballot-box 
the cause of hmnan rights and of the Union itself 
woidd be in constant peril. ^ 

Sumner asked to have this substitute printed, 
which was agi'eed to, and thus placed upon the record, 
a counter-manifesto or protest against the Amnesty 
Proclamation. The features of tliis manifesto are too 
prominent to be overlooked. The first one is, that 
the old governments in the seceded states had been 
" vacated " by the existing rebellion, and that it was 
the duty of the United States to reestablish " republi- 
can governments," but that no government shoidd be 
recognized as republican which had its origin in 
military orders, and where the civil was subordinated 
to the mihtary authority, or the rule of the majority 
repudiated ; nor where such government was insti- 
tuted by any executive officer, or by any one except 
the United States, and that the term " the United 
States " meant President and Congress. Inasmuch 
as Sumner, the day before, had replied to Henderson 
that " it was the bounden duty of the United States 
hy act of Congress to guarantee complete freedom," 
the share which he meant Congress to take in the 
1 Cong. Globe, 2d Sess. 38th Cong., 1091. 



364 PRESIDENTIAL RECONSTRUCTION. 

division of this constitutional duty between the legis- 
lature and the Executive is clear. The manifesto 
provided for the exclusion of rebels, but there was 
one thing more exclusive than presidential proclama- 
tions, congressional enactments, state constitutions, or 
state laws, and that was a majority of votes. As 
this majority of votes could not be found among the 
whites, he sought it among the blacks. It is notice- 
able that for once there is no talk on Sumner's part 
about the " oligarchy of skin," or the rights of the 
negro. He does not cloud his object with mock plii- 
lanthropy, but goes right to the root of the matter and 
lays it bare. It is this : If you mean to keep your 
power, you must outvote the Southerner in his home, 
and the only way to do that will be to swamp the 
ex-rebels with the votes of their ex-slaves. It was 
only four days before ^ that Henry Winter Davis had 
made his doleful prediction in the House, and had 
pictured the representatives and senators from the 
South claiming admission to Congress,^ and Summer, 
on his part, dropping even the pretence of philan- 
thropy, at once raised the cry of warning in the 
Senate ; " their ballots," said he, " are yet more 
needed against the subtle enemies of the Union at 
home, and without their support at the ballot-box the 
cause of human rights and of the Union itself will be 
in constant peril." 

As the Republicans had all along appropriated to 
themselves the cause of human rights and of the 
Union, and had denounced without ceasing the Demo- 
crats as the subtle enemies of the Union, it is not 

1 February 21, 1865. 

2 Cong. Globe, 2d Sess. SSth Cong., 969. 



THE NEGRO BALLOT. 365 

straining the senator's language too far, in \dew of 
Davis' prediction, to read his warning after this 
fashion : " The ballots of the negroes are needed to 
prevent the reinforcement of the Democratic minority 
by their old allies, the Southerners, and without negro 
ballots at the ballot-box the supremacy of the Repub- 
lican party will be in constant peril." 

Howard then took the floor and asked the question 
where in the Constitution could authority be found 
enabling the President to assure one tenth part of the 
people of an insurrectionary state, that they, to the 
exclusion of all other portions of the population of 
that state, should be recognized as the state, and be 
entitled to all the benefits of the guarantee contained 
in the Constitution ? Here was an attempt to stretch 
the executive authority beyond anything which the 
country had thus far witnessed, and he thought that 
it was time for Congress to lay hold of this subject, 
assert their power, and provide by a statute of uni- 
form application for the reconstruction, as it was 
called, and readmission of these states. That was 
the right, the duty, of Congi-ess ; that was not the 
right, the duty, of the President of the United States. 
He went somewhat learnedly into the question. What 
is a state ? ^ He rejected the idea that the rebellious 
states coidd be converted into territories, yet he said 
that he could not escape from the conclusion that the 
United States, as the party which had conquered the 
rebel country, and who held it necessarily in the iron 
grip of war, had the right, as the conqueror, to ride 
and govern the state as conquered country, subject for 
a time at least to their sole will. 

^ Howard took Penhallow's Case, 3 Dallas, 94, as a text. 



366 PRESIDENTIAL RECONSTRUCTION. 

This was to outdo himself, for all that Henderson 
had proved against Howard was, that he would keep 
the seceded states in a " tutelage " of one, five, ten, or 
twenty years ; but now he went still farther, until he 
planted himself upon the merciless vae metis policy 
of Thaddeus Stevens. Better far had he adopted the 
position taken by Sumner in his resolution of Febru- 
ary 11, 1862, and' accorded the states the grace of 
being territories of the United States : for a terri- 
tory of the United States is under the reign of law, 
but a conquered territory is under no law, and is sub- 
ject to the mere will of a commander and to the sway 
of that commander's sword. 

Reverdy Johnson followed,^ and, after giving an 
epitome of the principal facts which led to the reor- 
ganization of Louisiana, astonished the Senate and 
particularly his Democratic comrades by accepting the 
presidential reconstruction of that state, and recog- 
nizing its government. He shed much light on the 
reason that led the committee to recommend the rec- 
ognition. He said that the committee were of the 
opinion that it was not in the power of the President, 
under the circumstances, to bring the state back under 
the constitution of 1864, but that it was competent 
for Congress to do so. In taking this position, this 
astute lawyer anticipated events. He reviewed the 
objections to recognition, and answered them : First, 
that tliis government had been instituted at the in- 
stance and under the power of the military authori- 
ties of the United States. He admitted that the pre- 
cedent was a bad one, but his conclusion was that no 
matter how the proceedings were instituted, if in point 

1 Cong. Globe, 2d Sess. 38th Congress, 1095. 



REVERDY JOHNSON. 367 

of fact tlie people of tlie state acted voluntarily, and 
were competent to act under tlie original constitution, 
and were authorized to act by being loyal at the time 
they did act, it was the duty of the United States to 
receive them back. Whether they were brought to- 
gether under the authority of the President's Amnesty 
Proclamation, or by the authority of General Banks, 
made no difference. If, coming together, they did an 
act which they would have been authorized to do if 
they had come together voluntarily, they should be 
received. 

Another objection was that, however true it might 
be that it would be in the power of all the voters of 
the state to adopt a constitution for themselves, or to 
claim the right of commg back under the constitution 
existing at the inception of the rebellion, it was not 
true that it was in the power of 11,414 voters to take 
that course, when the entire voting population of the 
state was 51,000. It seemed to liim that there was 
no evidence to show that a single citizen of Louisiana 
was excluded from the right of voting. It by no 
means followed that there was an exclusion, either 
in fact or in law, because the vote of 11,000 was 
much less than the vote that could have been cast 
before the rebellion occurred. The war began in 1861, 
and these proceedings were had in 1864. Now, the 
gTeater proportion of the fighting, and therefore of 
the voting population entered into the military service 
of the confederate government, and of these most had 
forfeited their lives on the battlefield, and of those 
over and under the age of military service some had 
gone elsewhere, or had stayed where they were, but as 
disloyal, not as loyal citizens. It by no means fol- 



368 PRESIDENTIAL RECONSTRUCTION. 

lowed, therefore, that the number of votes cast was 
not a large majority of the actual number of voters to 
be found at that time in Louisiana. So then it was 
not only not certain, but it was quite improbable, that 
there was a single person excluded from the privilege 
of voting who should have been entitled to vote. 

That being the case, another thing was to be con- 
sidered : What was the condition of the loyal citizens 
of Louisiana, in the relation in which they stood to 
the federal government, by reason of the ordinance of 
secession ? Nobody pretended that they had ceased 
to be citizens of the United States : and if loyal, 
nobody would say that they had forfeited any of the 
rights which belonged to them when the rebellion 
broke out.^ When, then, the protection of the United 
States was afforded them, and they saw that they 
could speak their sentiments without hazard, they met 
at their election polls, organized their government 
under the existing constitution, and then, wishing to 
change it, met in convention and adopted the consti- 
tution now before Congress : why should this govern- 
ment not be reorganized ? 

Powell interrupted to ask the question : What right 
had the Senate to presume that there may not have 
been 12,000 loyal voters in Louisiana who were de- 
prived of the right of voting because of the order of 
General Banks ? As he understood it, no one could 
vote, no matter how loyal, although he had borne arms 
for the Union and had always been for the old flag 
and the old Union, unless he would take the oath pre- 

^ Thaddeus Stevens had discussed this point, and had expressly 
declared that it was the misfortune, though not the fault, of these 
loyal people to suffer the fate of the disloyal majority. 



A DILEMMA. 369 

scribed by the President, and swear to support all 
proclamations in regard to African slavery wliich had 
been already issued, and all that might afterward be 
issued. 

Johnson admitted that this was a difficulty which he 
had always felt. He asked, were these states to be 
governed as provinces? If so, there was no limita- 
tion to the power of Congress. If they were to be 
dealt with by the conqueror as he thought proper, 
what was to become of the loyal citizens ? Where 
were the limitations thrown around the power of Con- 
gress ? All gone. Were they to be governed as ter- 
ritories of the United States ? If so, the right to 
meet in convention and establish a constitution for 
themselves without a law of Congress authorizing it 
could not be taken from them. It was the American 
doctrine that the people have a right, as against the 
government, to meet and establish a government for 
themselves. 

Johnson then turned his attention to the amend- 
ment or substitute which Sumner had that morning 
laid on the table. He characterized some of its doc- 
trine as most remarkable, and asked whither would it 
lead if true ? Suppose the senator got Louisiana back 
under an act of Congress such as he would draw, say- 
ing to the people ; " You are authorized to frame a 
constitution for yourselves, provided you will insert in 
it a clause that the right of suffrage shall be exercised 
by the black as well as by the white," and they were 
admitted ; did he think that it would not be in their 
power to change that afterward ? When Congress 
admits a state into the Union, it puts such a state 
on an equality with all the other states. Would the 



370 PRESIDENTIAL RECONSTRUCTION. 

Senator from Massachusetts deny that it woukl be in 
the power of Massachusetts that clay to exchxde the 
black ? Yet, if an act of Congress placed it out of 
the power of the seceded states wlxen they came back, 
under the authority of that act, to change the quali- 
fications of electors, they would not come back as 
the equals of Massachusetts. 

Suumer interposed with an inquiry concerning the 
power of a state organized under the ordinance pro- 
hibiting slavery throughout the Northwest Territory, 
and which was declared to be a perpetual compact, to 
set aside this ordinance. Johnson thought the state 
could do so, except so far as rights were vested. A 
sharp colloquy ensued, in which Sumner was mani- 
festly unable to cope with Johnson, who forced his 
opj)onent to concede that Massachusetts had done 
wrong when she united with South Carolina in with- 
drawing from Congress authority to prohibit the slave 
trade for twenty years. He likewise exposed a gross 
mistake of Sumner, who attributed to General Wash- 
ington advocacy of consolidation of the states. All 
that Washington meant, said Johnson, was that the 
Union existing under the Articles of Confederation 
was made a stronger and more consolidated Union 
than it had been under those Articles ; not that 
Washington by this expression intended to announce 
as the true theory of the Constitution that the govern- 
ment of the United States was one government, pos- 
sessed with all the powers that belonged to one single 
government. This brought forward Henderson, who 
read a part of the letter of Washington, which showed 
beyond cavil that Washington did not convey the 
idea Sumner had attributed to him, but had used the 



SUMNER CONFUTED. 371 

very words, "the consolidation of our Unionr This 
incident did not enhance the credit of Sumner for 
ingenuousness. The next day, Jie made matters 
worse by reading a letter of Wasliington to John Jay, 
in which the writer recognized as essential to our 
national existence a power which would " pervade the 
whole Union in as energetic a manner as the authority 
of the state governments extends over the several 
states." 

The debate drifted on m a colloquial way, with 
Clark, Pomeroy, Saulsbury, Sumner, Davis, Johnson, 
Wade, Powell, Henderson, Trumbull, Hendricks, 
Doolittle, half of the Senate, taking part, and grew 
more and more disputatious. Attempts were made to 
terminate it by motions to adjourn, to postjjone, and 
to lay on the table, but were voted down. " The dis- 
cordant elements of the Republican party are exhibit- 
ing themselves here," said Hendricks. " But four 
years ago, a solemn pledge was made to the people 
of this country that that party, when it came into 
power, would not undertake to interfere with the 
institutions of the states. As soon as the disturbed 
condition of the country gave the pretext for it, 
the undertaking was commenced ; and now, when, in 
the judgment of some, it has been accomplished, there 
comes up the grave question, what is to be done, and 
what is to be the political condition of the 4,000,000 
negroes when they are set free? And upon that 
question the real strife of to-night has been witnessed. 
That is the subject, and it need not be disguised: 
it is growing out of the discordant elements of the 
party that now governs the country. . . . There are 
senators upon the Kepublican side who feel that it 



372 PRESIDENTIAL RECONSTRUCTION. 

is a very troublesome question. The Senator from 
Massachusetts (Sumner) is determined that none of 
these states shall .ever be heard in the halls of Con- 
gress, until the men who speak from those states 
speak the voice of the negroes as well as that of the 
white men. Other senators say that shall not be. 
We Democrats are a unit ujaon that question. We 
believe that this government was made by white men 
for white men, and we expect to stand by that idea. 
Let the controversy go on." ^ 

An adjournment being at last effected, the debate 
was renewed two days afterward, when Wade made 
one of his trenchant, denunciatory speeches against 
the recognition of Louisiana, and of its two senators, 
*' representing nobody and nothing except the will 
of the commander-in-chief of the army of the United 
States," and against the plan and everything that 
was presidential. Sumner ended the debate with a 
burst of fury, in which he made the coarse but very 
effective assertion, much commented upon through- 
out the comitry, that the pretended state government 
of Louisiana was " a mere seven-months' abortion, be- 
gotten by the bayonet in criminal conjunction with 
the spirit of caste, and born before its time, rickety, 
unformed, unfinished — whose continued existence 
would be a burden, a reproach, and a wrong. That," 
said he, " is the whole case." ^ 

With these scathing words, the debate upon the 
recoo-nition of Louisiana closed. Sherman had made 
a motion that the pending rule be dispensed with, 
so as to take up the bill which had been made the 

1 Cong. Globe, 2d Sess. 38th Cong., 1098. 
1 Cong. Globe, 1129. 



LOUISIANA NOT RECOGNIZED. 873 

special subject of tlie clay. He now insisted on the 
order of the Senate being enforced, or on abandoning 
his motion. " Senators must see now that to take 
up this controverted (Louisiana) question, in the 
face of the statements made here, is to exhaust the 
expiring hours of this session on a controversy in 
which the members of our own political party are 
divided." Thus did he accept and confirm the asser- 
tion of Hendricks that the Republican j^arty was di- 
vided on the negro question, or rather the freedman 
question. The vote on Sherman's motion was re- 
garded as a test vote on the pending question of the 
recognition of Louisiana ; for if Sherman prevailed, 
there could be little hope that in the few days that 
were left of the session, Louisiana would obtain rec- 
ognition. Accordingly, the Senate was marked by a 
very fidl attendance, four senators only being absent, 
and when the vote was taken on Sherman's motion, 
thirty-four voted aye, and twelve nay. Louisiana had 
failed to obtain recognition. 



CHAPTER XIX. 

WHAT CONSTITUTES A STATE OF THE AMERICAN 
UNION ? 

Debate in the Senate upon a resolution to reject from the Electoral 
College the states that had seceded — The case of Louisiana dis- 
cussed. 

It was a week only before the day fixed for the 
counting of the votes cast by the Electoral College for 
President and Vice-President in the presence of both 
branches of Congress, that is to say on February 1, 
1865, that a joint resolution which had emanated from 
the House and had been passed there was reported 
with amendments to the Senate by Senator Trumbull, 
chairman of the Committee on the Judiciary. This 
resolution declared that the states named in the pre- 
amble, which were the eleven states that had seceded, 
having been in a condition of armed rebellion on the 
eighth of November, 1864, the day of election, were 
not entitled to representation in the College, and that 
no electoral votes should be received or counted from 
these states.^ 

It was evident at the very outset that the case of 
Louisiana was going to be the main theme of discus- 
sion, for Ten Eyck at once moved to strike out of the 
preamble the word " Louisiana." If this had been 
agreed to by both Houses, the effect would have been 
^ Cong. Globe, 533 et seq. 



TEN EYCK'S MOTION. 375 

that the new government of this state, lately organized 
by General Banks at the instance of the President, and 
under the mode laid down in the Amnesty Proclama- 
tion, woidd have been recognized, and that the elec- 
toral vote of this state would have been counted, and 
would have had the same force as the vote of any other 
state. Ten Eyck frankly avowed that this was the 
object of his motion, which was the question pending 
before the Senate. But the Committee on the Judi- 
ciary, when they reported back the joint resolution, 
had accompanied it with an amendment, by which a 
statement that these states had continued in armed 
rebellion for more than three years was to be stricken 
out, and another substituted to the effect that "no 
valid election for President and Vice-President of the 
United States, according to the Constitution and laws 
thereof, was held therein on said day." The object of 
this amendment, according to Trumbull, was to avoid 
as far as possible any committal upon the subject 
which Ten Eyck's motion brought up, and to put the 
preamble in such form that, if it were adopted and 
the resolution passed, Congress would not have decided 
thereby whether Louisiana was in or out of the Union ; 
whether she was or was not a state. For himseK, he 
did not believe that there could have been an election 
in Louisiana according to the Constitution and laws 
of the United States, when a very considerable portion 
of the state was overrun by the enemy, and the legal 
voters had no opportunity to vote one way or the 
other. Moreover, the proclamation declaring the in- 
habitants of that state to be in rebellion had never 
been recalled, and, accordingly, these inhabitants were 
presumably still in a condition of insurrection. Ten 



376 WHAT CONSTITUTES A STATE? 

Eyck, in response, took the ground that these states 
were still in the Union, but that their governments 
were in abeyance, and that whenever these states, by 
the aid of the general government, or by the efforts of 
their own people, set their governments in action anew, 
it was proper to extend to them all the rights which 
the loyal people of a loyal state were entitled to. A 
committal of Congress should not be had against the 
interest of a state any more than in its favor ; and 
the adoption of his amendment, he admitted, would be 
a declaration by Congress that Louisiana was in a con- 
dition to perform all the functions of a state govern- 
ment, and to appoint state officers and senators and 
members of the national House of Representatives : 
but the same question was involved in the resolution, 
and it would be determined against the state if the 
joint resolution passed as it stood, for Congress would 
then decide that this state was at that day in a condi- 
tion of rebellion such as to deprive it of all the powers, 
rights, and privileges of a state. 

Howe followed in support of Ten Eyck's proposi- 
tion to except Louisiana from the rejected states, but 
for the reason contrary to the one given by Ten Eyck ; 
because, on accoimt of rebellion, " the American state 
was not there," and that it became the duty of Con- 
gress, in consequence, to supply the bereaved people 
with a government. In taking this view he evidently 
coincided with Judge Peabody. 

On the next day, Doolittle appeared on the scene, 
especially charged with the care of the Presidential 
Plan of Reconstruction and its defence upon the floor 
of the Senate against any and all comers. His com- 
rade, Trumbull, with wise prevision, it has been seen, 



LOUISIANA'S ELECTORAL VOTE. 377 

had clone his best to forestall adverse action upon the 
Louisiana case, for such a mishap would jeopardize 
the future of the Presidential Plan by subjecting it to 
what virtually would be a vote of lack of confidence. 
Whether the vote of Louisiana were counted or no, 
the result would not be affected one way or the other ; 
Lincoln was sure to be President, and the main thing 
was to insure the future of the Presidential Plan ; the 
present was secure. To imperil the future by a fruit- 
less decision in the present, that, on the eighth of 
November, 1864, Louisiana was in a proper and law- 
ful condition to vote for President, was to reenact the 
part of the dog in the fable ; it was bad politics. Ac- 
cordingly, he avoided all question and any decision 
upon what he must have felt coidd stand little scrutiny, 
by including the name of Louisiana among the rejected 
votes and thus keeping her in the place she had occu- 
pied during the rebellion. Why, in taking this course, 
he and Doolittle failed to act in concert, as was usual, 
does not appear, but on February second, Doolittle 
gained the floor, and proceeded to argue away the 
existence of any power in Congress over the counting 
of these electoral votes. Of course, if Congress had 
no power over the count, the votes would have to be 
received and counted as they had been returned, and 
no right of rejection would exist in Congress : the 
federal legislature could neither annul votes nor de- 
clare void votes that had been given. Hale denied the 
correctness of this position emphatically, and thought 
that it would be one of the strangest things that had 
ever occurred on earth, if Congress had not such 
power ; whereupon Doolittle averred that Hale had 
stated his case for him too strongly, and that Congress 



378 WHAT CONSTITUTES A STATE? 

did have power over the subject, but that it was re- 
stricted, and was limited to power over the question of 
choosing electors. Congress was not the tribunal to 
which the question of counting was referred, but the 
President of the United States Senate presiding over 
the joint convention of both Houses had been consti- 
tuted such tribunal. A slight manifestation of feeling 
between Doolittle and Trumbull occurred, and the 
latter expressed his regret at seeing Doolittle exliibit 
it ; a manifestation which Doolittle disclaimed. The 
debate proceeded, and Collamer proposed to settle the 
matter by an amendment to the effect that the people 
of no state declared in insurrection should be regarded 
as empowered to choose electors until a law of the 
United States had declared this insurrection to have 
ceased. Reverdy Johnson agreed with Trumbull and 
CoUamer that the authority of Congress over the sub- 
ject existed, and so did Howard, who looked upon it 
as the bounden duty of Congress to keep out of the 
Union every one of these eleven seceded states until it 
had become evident that there was a clear, absolute 
majority of the voters in each state " friendly to the 
government of the United States ; " a phrase suscep- 
tible to divers interpretations, when it is considered 
that Howard was one of those who, like Wilson, had 
no faith in the loyalty of any one who did not vote 
the Republican ticket. 

In the warmth of the debate, a good many ques- 
tions foreign to the issue, as Davis complained, had 
been dragged into discussion. How the vote was to 
be counted, and by whom, were subjects much dis- 
cussed. Powell, nevertheless, stuck to the subject of 
Louisiana, and strenuously opposed Ten Eyck's mo- 



WADE VERSUS LINCOLN. 379 

tion, and also CoUamer's substitute, and scored Gen- 
eral Banks unmercifully. The most pungent speech 
of the debate was, without question, Benjamin 
Wade's. This senator was a blunt man, and when- 
ever he sjjoke, he spoke to the point and did not 
mince matters. He was a man of strong passion, 
was pugnacious, and one who did not easily forget an 
injury or forego an opportunity to strike back. He was 
the senator who had united with Henry Winter Davis 
in giving to the world the manifesto against the Presi- 
dent when he had pocketed the Reconsti-uction Bill at 
the end of the preceding session. He never forgave 
Lincoln for that act ; he did not fear him, he would 
not court favor of him, and he did not hesitate to 
give his opinion about the President whenever he had 
the chance to do so. This debate offered him an 
opportunity to unbosom himself, and accordingly he 
took the floor. 

He began by saying that, a year before. Congress, 
wisely anticipating these questions, had framed a bill 
with which to meet them, but that it had been pock- 
eted by the President. This the President had done 
in defence of his Amnesty Proclamation, declaring 
that when one tenth part of the people of a state 
would come back, they should be recognized as a state, 
— a proposition the most absurd and impracticable 
that ever had haunted the imagination of a statesman. 
In this the President had cut loose from the principle 
of the rule of the majority, and there was nothing 
left ; all was open sea, all anarchy, all confusion, and 
this proclamation was the most contentious, the most 
anarchical, the most dangerous proposition that was 
ever put forth for the government of a free people. 



380 WHAT CONSTITUTES A STATE? 

Could any portion of the territory of a state attempt 
to ofovern the whole ? Could the Senate be so blind 
as to suppose that, when these state officers were 
clothed by military power with authority to govern, 
it was a republican government ? It was just as 
much a military government after as it had been 
before the farce of selecting those officers was gone 
through with. There was the military governor ; had 
he ever been withdrawn from Louisiana? Or, if an- 
other had been substituted, by whom had he been 
substituted ? By the commander-in-chief of all the 
armies of the United States. When the mandate 
went forth from the President to Halm, " Be gov- 
ernor of that state," he did not consult the Senate, 
he did not consult anybody in particular, but the 
mandate issued from the President of the United 
States unaided, unknown, uncounseled by anybody. 

'' You need not talk to me about your one tenth," 
he exclaimed ; " if a majority of a state was rebellious, 
a free government in that state is impossible. Was 
there any principle of free government that had de- 
cided that anything less than a majority of the people, 
or voters, of a state could govern its destinies? I 
speak not of the farce of a civil government over- 
shadowed by a military governor, a wheel within a 
wheel, a military government dominating your whole 
political community, and inside of that and under it 
and subordinate to it, a civil government pretending 
to be a free government ! I say it is a farce ; it is 
unworthy of the American Senate to give it a mo- 
ment's consideration. . . . It is a government of false 
pretences. Withdraw your army from Louisiana 
to-day, and what would be its condition ? Have you 



JEALOUSY OF MILITARY POWER. 381 

any evidence as to what that people would do to-mor- 
row, if you withdrew all your miKtary force from 
there ? Have they voted, have they given any evi- 
dence to show that they are loyal to the government 
of the United States ? Not a lisp of it, not a word 
of it. More than four fifths of the territory of that 
state now is trampled down beneath the feet of mili- 
tary power, just where it ought to be for its rebellion, 
and you dare not withdraw your armies from there : 
and do you talk of free republican state government 
there ! Sir, you cannot have it." 

Doolittle weakly interposed, but was silenced in a 
moment by the provoked orator, who, like Henry 
Winter Davis, was astonished to find any difference 
of opinion in the body that had so unanimously 
passed the Reconstruction Bill less than a year before. 
Had anything occurred to change their opinions? 
Could they really claim that that portion of Louisiana 
was free even where their army was ? and he sarcas- 
tically insinuated that the Border states themselves 
were under military domination, for the Senator from 
Kentucky, Powell, had told them that they did not 
govern there according to the laws of Kentucky, and 
that they did not even foimd the basis of government 
upon the laws of that state, but that the military 
authorities regulated the elective franchise there. 
Was there any freedom in that ? 

Wade evidently feared the extension of presiden- 
tial usurpation over the Border states, and, perhaps, 
over the whole country, for he did not hesitate to say: 
" I make these observations, because I am exceedingly 
jealous of military power, and I never will consent 
that a people predominated over by a hostile military 



382 WHAT CONSTITUTES A STATE? 

power shall found an American republican state. 
They cannot do it. To do it, they must be as free 
as air, and until they are in that condition, it is im- 
possible to have a free government there. . . . Let 
us settle now and forever the principle, that the Presi- 
dent of the United States cannot in times of civil 
war, whenever he happens to have an army in a state, 
improvise by military force a legislature, and call it 
the power of a state, in such a sort as to count that 
semblance in his favor as a fact. If it were attempted, 
I know for one that I woidd not put up with it." 

There were two things which seemed to weigh upon 
Wade's mind. One was, that a residt of leaving the 
reorganization of a state to a mere fraction like one 
tenth might be, indeed would be, to invite eventually 
the political destruction of a feeble minority by the 
nine tenths, when the return of peace had reinstated 
the majority. " When the general government aban- 
dons them," said he, " when it leaves the one tenth in 
the hands and imder the domination of the nine 
tenths, what will be their condition?" This appre- 
hension, he declared, was shared by Andrew Johnson, 
the Vice-President elect, and by other Unionists in 
the southern states. This calamity, he insisted, had 
been provided against by the Reconstruction Bill, 
wliich had required a majority of the loyal people 
to effect the reorganization. 

The other thing which predominated in Wade's 
speech was dread of presidential usurpation. He did 
not delude himself with the notion that the aggrand- 
izement of power was distasteful to the President, or 
that he had assumed it unwillingly and would as 
willingly lay it down the moment the necessity for 



THE PRETEXT OF NECESSITY. 383 

it had passed away. The pretext of necessity and 
the pushing* away the crown conkl not deceive him 
in view of Lincoln's secret letter to Banks, and his 
curt investiture of Governor Hahn with military power 
after this governor's election and mauguration. Nor 
did he overlook Powell's allusion to the military rule 
of Kentucky, a Border state, and one sej)arated from 
his own state by the river Ohio only. This was get- 
ting too near home. 

As soon as Wade halted for breath, Wright moved 
to adjourn, but the Senate refused to do so, and a 
running colloquy ensued until another motion to 
adjourn was made, which in its turn was voted down. 
A motion was then made to postpone this joint reso- 
lution indefinitely, but the Senate had no mind at 
this stage to get rid of the question ; they preferred 
to meet it, and so they refused to postpone. Having 
done this, the Senate adjourned. 

When the pending question came up as the special 
business of the next day, Doohttle took the floor, and 
it was evident from his statement that the jjending 
question would have no practical effect whatever in 
disposing of the presidential canvass, and that there 
was no necessity for fixing the law that day more 
than at any time within the next foijr years, that 
perhaps he had become convinced overnight of Trum- 
bull's sagacity in letting the sleeping dog lie. He 
set bravely to work, but it was not long before he lost 
his temper, and coupling together Wade, the radical, 
with Powell, the conservative and strict-con struction- 
ist, he remarked upon the strange spectacle presented 
when the two extremes of the Senate came tos^ether 
in this way. " One would suppose," he cried, " that 



884 WHAT CONSTITUTES A STATE? 

Pilate and Herod had joined hands both to attack 
the administration in its policy on this subject, and 
to see if they could crucify the free state of Louisi- 
ana." 

Doolittle was one of the most accomplished orators 
and debaters then in the Senate: he was withal a 
fair man, self-controlled, and one who respected him- 
self and others. But even such men cannot always 
maintain their balance, and he lost his when he lost 
his temper. His taunt brought him no good, for 
Powell retorted that he did not know whether the 
honorable senator had likened him to Herod or to 
Pilate, but the senator had said that the Senator 
from Kentucky and the Senator from Ohio, like 
Herod and Pilate, desired to crucify the state of 
Louisiana. He was not aware before that Herod 
had much to do with the crucifixion. He knew that 
Pontius Pilate judged on that occasion, and that his 
judgments had been deemed infamous. He had told 
the Senator from Ohio that he might take either ; if 
he thought he had been likened to Pilate, he might 
defend Pilate, and if he thought that he, Powell, had 
been likened to Herod, he would stand on that : but the 
Senator from Ohio had answered that he did not care 
a toss of the, copper which. Here the Senate forgot 
its gravity and roared ; while Powell added that, if 
the comparison should be applied to anybody, it ought 
to be applied to the President and General Banks. 

Powell, who had already made some clear-headed 
remarks, now proceeded to discuss the pending ques- 
tion at length. He brought out the military character 
of the Louisiana reorganization with great effect, 
dwelling particularly upon the conduct of Banks, and 



POWELL DEFINES "USURPER." 385 

he exemplified the dangers of military iuterference by 
showing that Banks had even deliberately exceeded 
his orders : an excess of zeal which, it was significant, 
had not been rebuked by his superior. He had, too, 
something to say of the usurpation of the President, 
and, at a time when this and kindred words were used 
with looseness and indefiniteness, to characterize the 
President's action, he did the poKtical world a service 
by defining the word " usurper," and by indicating its 
proper application. He divested it of its quality as 
a malignant epithet, and gave it its proper significa- 
tion. " I use the word ' usurper,' to indicate those 
who administer the functions of their offices in viola- 
tion of law. It was a maxim of the Athenians that 
all who administered the functions of their offices in 
violation of law were usurpers. It is in that sense 
that I use the term. However good their intentions 
may have been, I say that in their [the President 
and General Banks] exercise of power in Louisiana 
they overthrew the Constitution and laws of their 
country which they had sworn to support ; and hence, 
in my judgment, they are technically usurpers." 

It is noticeable throughout these debates in the 
Senate that, with the exception of general denials, and 
these even rarely expressed, there was no attempt to 
contradict the reiterated accusations of presidential 
usurpation. It is true that these accusations were 
frequently made in the excitement of the moment, 
when it would have invested them with gravity too 
great had the orderly course of debate been inter- 
rupted in order to answer them. On the other hand, 
they were made usually with all the seriousness and 
earnestness the subject demanded ; not in a captious 



386 WHAT CONSTITUTES A STATE? 

spirit, but with the most sober sense of responsibility 
and with pressing warning, and yet, except such de- 
nials as Doolittle afforded an instance of in this very 
debate, mere counter-assertions in fact, they were 
allowed to pass without answer. The inference is, 
that as the House was silenced on this subject by the 
bitter sarcasm of Thaddeus Stevens when a member 
was bold enough to claim constitutionality for the 
President's interference in southern reconstruction, so 
the Senate was silenced by the self-evident truth which 
these accusations carried with them.i They could not 
be controverted, for the repudiation of the principle 
that the will of the majority, lawfully exercised and 
expressed, shall rule, and of the principle that the 
military power must be subordinate to civil govern- 
ment, — this was unwarranted by the Constitution or 
by any principle of representative democracy, and, 
under Powell's definition, which will hardly be gain- 
said, the course of the President must be considered 
one in which powers were usurped. 

In this debate Doolittle took positive ground in fa- 
vor of the doctrine that the states in rebellion were not 
out of the Union. Indeed, he went out of his way to 
controvert " the fine-spun theories advocated in certain 
other quarters," that such states, by virtue of their 
insurrection, had ceased to exist as states of the 
Union.2 He was very denunciatory of this doctrine, 

^ In his speech on the recognition of Louisiana (Cong. Globe, 2d 
Sess. 3Sth Cong., lOGl) Powell declared, withoiit contradiction, that 
he had heard the Amnesty Proclamation commented upon in the 
Senate by numerous senators, and had heard no senator maintain 
that the President could legitimately exercise the power he had as- 
sumed in that proclamation. 

^ Cong. Globe, p. 578. 



THE SOUTHERN STATES DEBARRED. 387 

maintaining that it was " one liuge, infernal, constitu- 
tional lie, that would stamp all our conduct from the 
beginning as murder, and cover us all over with blood. 
And I tell you that, • whatever fine-spun theories 
politicians may adopt here at Washington or elsewhere, 
when the Convention came to meet at Baltimore, 
freshly representing the people of the United States, 
they trampled the miserable humbug under their feet 
by nominating Andrew Johnson, of Tennessee, as 
Vice-President of the United States — Tennessee, 
still a state of the United States." 

Such was Doolittle's opinion of the .principle under- 
lying the relations of the seceded states to the general 
government, and such, in his view, was the motive 
which the people had for nominating Andrew Johnson, 
whose great ally and henchman he was soon to be. 
It is singular that Sumner, who was to become John- 
son's luirelenting adversary, took this occasion to give 
his opinion of his former co-member of the Senate, who 
was then Vice-President elect. It was to this effect : " I 
presume nobody ever questioned that Andrew Johnson 
was a great and loyal citizen of the United States." 

Ten Eyck's motion was lost,i and finally the joint 
resolution was passed on February fourth,'^ and was 
returned to the House, where the Speaker signed it.^ 
The eleven states, therefore, were debarred from repre- 
sentation in the Electoral College. Nevertheless, the 
end was not yet, for, though the President returned 
the joint resolution with his signature, he accompanied 
it with a message which gave his adversaries on the 

^ By a vote of 22 to 15 ; not voting-, 14. 

2 By a vote of 29 to 10 ; absent, 12. 

3 February 6, 1865. 



388 WHAT CONSTITUTES A STATE? 

floors of Congress fresh occasion to accuse him of dis- 
respect towards the legislative branch of the gov- 
ernment. He said that he had signed the resolution 
in deference to the views of Congress implied in its 
passage and presentation to him. In his own view, 
however, the convened Houses of Congress had com- 
plete power to exclude from a count all electoral votes 
deemed by them to be illegal ; and that it was not 
competent for the Executive to defeat or obstruct that 
power by a veto, as would be the case if his action 
were at all essential in the matter. He disclaimed all 
right of the Executive to interfere in any way in the 
matter of canvassing or counting electoral votes, and 
he also denied that, by signing the resolution, he had 
expressed any opinion on the recitals of the preamble, 
or any judgment of his own upon the subject of the 
resolution. 

It was evident that the President had taken the 
matter sorely, and the supposition was that he re- 
garded the joint resolution as a legislative censure of 
his plan of reconstruction ; but that, as Congress had 
undertaken to convey to him their opinion of him and 
his methods, he had embraced the same occasion to 
show them that his indifference towards what they 
said and did was as great then as it was on the day he 
pocketed the Reconstruction Bill. For the Republi- 
cans to express their feelings would be to make public 
their family quarrel. Accordingly, they remained 
dumb, while Reverdy Johnson, whose position as a 
Democrat imposed no restrictions upon him in this 
respect, gave utterance to the general feeling on what 
he characterized the extraordinary course of the Presi- 
dent, and a reflection upon the Senate and Congress. 



THE PRESIDENT READS A LECTURE. 389 

If the President was sincere in thinking that it was 
not a subject for the legislation of Congress, he ought 
to have disapproved the resolution, but in the speaker's 
judgment the President was entirely wrong in point of 
law. Jolmson recalled the manifesto of the President 
after pocketing the Reconstruction Bill, in which he 
had said that there were some good things in the bill 
passed by Congress, and some bad ones : and that as 
far as they were good he would act upon them, but 
as far as they were not as good as the things he him- 
self proposed, he would be governed by his own judg- 
ment. It seemed to Jolmson that the President had 
read Congress a lecture — and so it seemed to the 
world, and thus for the second time in seven months, 
or in a period really of sixty days only of congressional 
session, Lincoln had snubbed the legislature. The 
Executive had become too strong for the legislative 
branch of the government ; he felt his power, and his 
contempt of the representatives of the states and the 
people grew apace ; in fact, he made no attempt at 
concealment. As for the people, everything that the 
President did pleased them : they looked not to con- 
clusions, and what could be more amusing than to see 
" Old Abe get ahead of the politicians " ? 



CHAPTER XX. 

CONCLUSION. 

This account of the President's course with reference 
to slavery and the seceded states, the opinions hekl 
by the dominant party in Congress respecting the re- 
lations of the federal government towards the seceded 
states, and the short life and untimely fate of the 
Reconstruction Bill, are sufficient to indicate the 
departure of the Republicans from the position they 
occupied at the outbreak of hostilities, and their repu- 
diation of the sentiments expressed in the President's 
Inaugural Address and First Message, and by the vote 
of Congress on the Crittenden resolution in July, 1861. 
This rupture with old doctrine had been speedy, and 
this repudiation had been emphatic : indeed, the time 
came when every Republican member that had been in 
Congress during 1861 seemed to make it a point, in 
season and out of season, to repudiate his vote on this 
resolution ; while every new member made haste to 
show to the world how truly he was " abreast of the 
times," or in advance of them. 

The secret of this change in the temper and senti- 
ment of the Republican party is to be found in the 
change of temper and sentiment which the people 
themselves had undergone as the war continued. Dur- 
ing the first part of the war, the North had to sustain 
a succession of reverses in the field. Never in the 



CHANGE OF NORTHERN TEMPER. 391 

history of any modern people can there be found so 
many and so great faihires as appeared, one after an- 
other, among- the federal commanders of armies. They 
followed tliick and fast, and were of all sj)ecies of 
incompetency. The Army Register seemed to have 
been ransacked for weak material, and the people, as 
they saw army after army paralyzed or crippled, at 
last lost patience and became soured and vengeful. 
They became soured towards the authorities at Wash- 
ington, executive and legislative, and vengeful towards 
the South. The spectacle of vast numbers of northern 
soldiers rotting in southern prisons, with their own 
government apparently indifferent to their fate, exas- 
perated them beyond measure. It was natural, for it 
was easier and safer, to lay all the blame at the door 
of the rebels, and to regard them as enemies to be pun- 
ished after success had placed it in the power of the 
North to do so. This object attained, it mattered little 
to the unthinking masses whether the President con- 
sidered the rebellious states in the Union, or whether 
Stevens looked upon them as out of the Union. 

The Republican party was not at heart a constitu- 
tional party. There stood the Constitution, and it 
would not down : but it could be used, and when not 
used for their purposes, it could be, for the moment, 
argued away or ignored. Nothing more clearly re- 
veals the unadaptability of this party to the Constitu- 
tion than its manner of treating that instrument when 
it came to ascertain and settle the relations of the se- 
ceded states to the federal government. The harmony 
wliich conformity with a coitunon standard character- 
izes was wanting ; three distinct and conflicting views 
of the situation appeared, and three sej)arate and dis- 



392 THREE VIEWS OF THE SITUATION. 

tinct plans of reconstruction struggled for supremacy 
within the limits of this party. There was the Presi- 
dential view, which, on the face of it, could not have 
had its origin in any provision of the Constitution, for 
a new government was to be imposed upon the state, 
and not created by the people of the state ; it was 
not, therefore, a popular government : it was to be cre- 
ated, ostensibly, by a small fraction of the people, one 
tenth ; it could not, therefore, be a government of the 
majority, nor a republican form of government : and 
it was to be inaugurated and indefinitely controlled by 
the army, and therefore was in violation of the consti- 
tutional principle which subordinates the military to 
the civil power. 

Of the two factions which struggled for supremacy 
on the Republican side of Congress, one faction main- 
tained that the states were in the Union in spite of 
secession, but that the people of the state had, by their 
act of secession, forfeited their federal rights ; i. e., 
that the states were still " in," but that the people 
were " out ; " and the other that they were out of the 
Union by virtue of secession that was maintaining 
armed resistance successfully enough to entitle them 
to be considered as belligerents, with the penalty of 
subjection if worsted in the fight: neither of these 
factions found support in the Constitution, though 
one of them made use of the "republican form of 
government " clause.^ 

If those who asserted that these states were still 

in the Union had carried this doctrine to its logical 

conclusion, they would have had to concede that, under 

any circumstances, those of reconstruction included, 

1 Art. rV. sec. 4. 



CONSERVATIVE CONGRESSIONAL VIEW. 393 

tlieir right of self-government had survived inviolate, 
and therefore that their restoration depended upon 
themselves. But these legislators would not grant 
this consequence, and were forced to the untenable j)o- 
sition that, though these states were still members of 
the Federal Union, and their citizens had not ceased 
to be citizens of the United States, these citizens had 
become incapable of exercising poHtical privileges. 
The defects of this position are manifest : in the first 
place, it involved the contradiction that while certain 
states were in, their citizens were out, and, secondly, 
in order to establish a constitutional ground, they 
adopted for this purpose the clause of the Constitution 
ordaining that " the United States shall guarantee 
to every state in this Union a republican form of 
government." As a guarantee implies a preexisting 
government, and can refer only to such a one, they 
were met with the difficulty that the state govern- 
ments in question were not only republican, but that 
this republican form had been recognized in every 
instance already by the United States, and that, as 
there was no evidence of their having been changed 
in form, this article could not apply to the seceded 
states : moreover, the term " this Union " coidd have 
no reference to any other Union than that formed 
under the Constitution, and from which these states 
had seceded. It could not mean " a Union," or 
" another Union," or, as Doolittle asserted, " a better 
Union." 

Coupled with this error was the claim of Congress 
to paramount and absolute authority in matters of 
reconstruction. This claim was founded upon the 
sovereignty of the people of the United States, to 



394 CLAIM OF CONGRESS. 

wliieh was relegated all power affecting the Union. 
But the reconstruction of a state is the creation of a 
state, and the power to create does not belong to the 
people of the United States, but to the people of the 
state to be created. No state can be the creature or 
the creator of its fellows : New York cannot impose a 
constitution, directly or indirectly, upon Vermont, 
and if New York cannot do so, neither can any other 
state, nor, consequently, can all the states combined. 
The fact remained as it always had existed that, great 
as the powers of Congress may be respecting the 
affairs of the Union, they could not be extended so as 
to enlarge, diminish, create, or extinguish a state. So 
far as the internal affairs of the Union are concerned, 
Congress is merely the legislature of the Union, and 
as each House of this legislature has by direct provi- 
sion and limitation of the Constitution the right to be 
the judge of the elections, returns, and qualifications 
of its own members, its power even to recognize is 
limited when these conditions are satisfactory to it. 
The recognition cannot be a qualified one, for when 
the members and senators take their seats, the state 
that sent them has been recognized unconditionally as 
a member of the Federal Union. Congress may delay 
admission, but when the Constitution has been com- 
plied with, it cannot refuse recognition and complete 
recognition. Hence the necessity of Congress to find 
constitutional ground for its claim to absolute power. 
It had already set aside the article forbidding any 
new state to be formed or created within the jurisdic- 
tion of any other state, when it sanctioned the creation 
and admission of West Virginia. In casting about for 
ground upon which it could proceed to the absolute 



CONTRADICTIONS. 395 

control of the South, it fixed upon the section next 
succeeding the one it had violated : this section ^ could 
be adapted to the present circumstances with reason, 
only in case a republican form of government were 
adjudged to be so incompatible with slavery that this 
form of government could not exist where slavery 
existed. But the history of the United States since 
the Declaration of Independence was in direct contra- 
diction of such a notion ; for when independence was 
declared, slavery was a feature of all of the new-born 
states save one, and where it had been abolished since 
that time, it had been abolished by the states and not 
by the federal government, and then there could be no 
question of each state having control over its own 
institutions (the distinguishing feature of a free and 
independent state, and of one, too, which must be 
republican), otherwise it could not have been, during 
its whole existence as a state, a member of the Federal 
Union. Nor was the present less striking than the 
past in its contradiction of such an interpretation of 
this constitutional clause, for how could slavery be 
incompatible with a republican form 'of government 
when it still remained an institution in several of the 
states which had not seceded, which were supporting 
the Union, and of whose republican form of govern- 
ment there was no question ? But, to sweep away any 
claim resting upon such ground, it is enough merely 
to point out the undeniable fact that slavery is not a 
form of government, republican or otherwise ; it is an 
institution merely. So far adrift was the only faction 
in the Repubhcan party which pretended a regard for 
the Constitution. 

^ Article IV. sec. 4. 



396 RADICAL CONGRESSIONAL VIEWS. 

Much more manly and less dangerous were those 
who asserted that the seceded states, by the act of 
secession and by maintaining this secession by force of 
arms, had placed themselves outside of the Union, and 
had become mere territories over which the federal 
government might exercise the rights of conquest. 
They knew well that any pohcy which had for its 
foundation the inequality of the states, the interfer- 
ence of the federal government in the affairs of a state 
within the Union, the subordination of the civil to the 
military power, and the abrogation of the rule of the 
majority, had no countenance from anything within 
the four corners of the Constitution, and was in viola- 
tion of the spirit as well as of the tenor of the bond of 
Union. Accordingly, they did not hesitate to say so, 
and to make the abrogation of the Constitution coor- 
dinate with the dissolution of the Union, which they 
accepted so far as the states in armed resistance were 
concerned. This view placed the states without the 
pale of the Union and the Constitution ; it made their 
soil conquered territory, to be disposed of as the 
United States should think fit, and making the rebels 
belligerents, handed them over when conquered to the 
mercy of the federal government. This party exer- 
cised its severity under the cry of "humanity," — 
war was to be waged for the enfranchisement of the 
slave ; this accomplished, it would be for the' subjected 
whites to meet the day of reckoning. It is due to the 
people of the North to say that, while this vae vlctis 
policy swayed many in its direction, it never got pos- 
session of their minds and hearts until a late day. 
" There 's too much negro in it," and " blood, after 
all, is thicker than water," were common sayings even 



EXTRA-CONSTITUTIONALISM. 397 

among those upon whom the war had faUen with a 
heavy hand. 

It is idle to speak of constitutional standards and 
positions when discussing- those who openly avowed 
their independence of the Constitution, and who, like 
btevens, took malign pleasure in pointing out to their 
less radical coUeagaies how these fine-spun theories 
were as much outside of the Constitution as were 
their own bold and radical views. Nothing deli-hted 
Stevens, the Mephistopheles of the Republican party 
more than to add to the confusion of his coUeagues 
by taunting them vvith their broken-down constitu- 
tionism, or to complete the discomfiture of the Presi- 
dent's party by winding up a bitter attack on the 
J^xecutive with the question, where the President 
found m the Constitution, to which he was constantly 
alluding, his authority for creating military govern- 
ments at the South, or for creating any government at 
all, and where the Constitution authorized him, or any 
one else, to set the minority above the majority.i The 
radical faction boldly maintained that the states were 
out of the Union ; that, when conquered, their terri- 

to IZnrtl'atT 'if h"' ^Tr'7*^ fi'^'i -^tl^-^- the Constitution 
to warrant that ? If he must look there alone for authority, then aU 
these ac s are flagrant usurpations, deserving the condemnation of the 
eommmnty. . . . I understand that these proceedings all take pace 
not under any pretence of legal or constitutional right, but in S 
of the laws of war; and by the laws of nations theL aws are^st 

h^tani; T:*"r'%f ™'"*'^**'^'^^^^^ "°* inconsistent^ 

state no^bv J' T' '* "' ™"^ "^""* ^^^^* V^^^-'^ - - new 
state, no by virtue of any provision of the Constitution, but under 
our absolute power which the laws of war give us in the ircum 
stances xn wh.ch we are placed. I shall vote for this bill upon th^t 
theory, and upon that alone; for I will not stultify myself by sxxp 
posmg that we have any warrant in the Constitution for Lis proc ed- 
mg." December 9, 1862 : Cong. Globe, 50. 



398 IRREFRAGABILITY OF THE UNION. 

tories and the property of their citizens were subject 
to confiscation, and that the citizens themselves were 
subject to punishment at the will of the conqueror ; 
and they snapped their fingers at a Constitution 
which all but themselves professed to reverence but 
never obeyed, and which was upheld by none except 
the " copperheads." 

The defectiveness of the radical view of the situa- 
tion, judged from the standpoint of the Constitution, 
is apparent. That the Constitution is a compact irre- 
fragable by anything except successful revolution is 
the view taken by northern constitutionists. Presi- 
dent Lincoln, in his first Inaugural Address, expressed 
this matter very tersely and clearly when he said 
that : " The Union is perpetual. ... It follows from 
these views that no state, upon its own mere motion, 
can lawfully get out of the Union ; that resolves and 
ordinances to that effect are legally void ; and that 
acts of violence within any state or states against the 
authority of the United States are insurrectionary or 
revolutionary according to circumstances." This no- 
tion was not confined to the North ; it had been widely 
entertained tlu*oughout the South, but there it was 
universally held also that no power existed, by which, 
under the Constitution, the coercion of one state by 
another, or by the federal government, was permissi- 
ble. If this view of the irrefragability of the Union 
be conceded, it follows that the effect given by the 
radical Republicans in Congress to the maintenance 
of armed resistance in the seceded states was to 
grant that secession had accomplished dissolution of 
the Union. This was going as far as the most rad- 
ical secessionist liimself could go. It was conceding 



RADICAL SOPHISMS. 399 

the very point at issue, and allowing the secessionist 
to depart in peace. But at this point the radical 
claimed that the secessionist was a belligerent, and 
that it was the duty of the federal government to 
subject the South to its authority. It is difficult to 
see, if the secessionist could abandon our Constitution 
and make a new one for himself, and if his act of 
secession were rendered valid by his successful resist- 
ance to our arms, why he should not be allowed to do 
so in his acknowledged right to " the pursuit of hap- 
piness ; " or what was left to us but to lay doAvn our 
arms, to gather the fragments of the old Union to- 
gether, and provide for the future as best we could. 
Graiiting this effect of secession, asserted by the radi- 
cals, what right had we, in this event, to pursue the 
secessionist with force of arms ? " He was guilty of 
an act of treason and rebellion," replied Stevens; 
"all these crimes were committed before the rebels 
became belligerents." If all these crimes had been 
committed before the perpetrators became belliger- 
ents, then the recognition by the federal government 
of the perpetrators as belligerents did away with their 
character as criminals, and rendered punishment after 
subjection out of the question. If to recognize them 
as belligerents was to lose authority over the insur- 
gent states, what pretext had the federal government 
to continue the war, for authority was the very basis 
of its action ; it was waging war against those who, it 
asserted, owed obedience to its authority, but who were 
openly denying this authority. " Who ever heard," 
retorted Thomas, of Massachusetts, " as a matter of 
public law, that the authority of a government over 
its rebellious subject was lost until that revolution was 
successful, — was a fact accomplished ? " 



400 WITHOUT COMPASS OR CHART. 

Thus, like his brethren whom he had taunted, Ste- 
vens found himself in the midst of contradictions, and, 
like them, he floundered in the attempt to gain a solid 
footing. The radicals, who had made merry over the 
confusion of their colleagues who still professed a 
regard for the Constitution, had in turn to face the 
fact that throwing the compass and chart overboard 
was not the most judicious way of making port. 



r 



i 



APPENDIX A. 

The following extracts from the credentials of the dele- 
gates from the different colonies to the Congress of 1774/ 
show how single was the object sought, and how strictly- 
advisory was the character of this body. It will be ob- 
served that of governmental powers there were none : the 
Congress was a mere Council. 

New Hampshire. " To devise, consult, and adopt such 
measures as may have the most likely tendency to extricate 
the colonies from their present difficulties ; to secure and 
perpetuate their rights, liberties, and privileges, and to 
restore that peace, harmony, and mutual confidence, which 
once happily subsisted between the parent country and her 
colonies." 

Massachusetts. " To consult on the present state of the 
colonies, and the miseries to which they are, and must be 
reduced, by the operation of certain acts of Parliament re- 
specting America ; and to deliberate and determine upon 
wise and pi'oper measures to be by them recommended to 
all colonies, for the recovery and establishment of their just 
rights and liberties, civil and religious, and the restoration 
of union and harmony between Great Britain and the colo- 
nies, most ardently desired by all good men." 

Rhode Island. " To consult on proper measures to ob- 
tain a repeal of the several acts of the British Parliament 
for levying tax on his Majesty's subjects in America with- 
out their consent, and upon proper measures to establish the 
rights and liberties of the colonies upon a just and solid 
foundation, agreeably to instructions given by the General 
Assembly." 

^ Journals, I, 2-9. 



402 APPENDIX A. 

Connecticut. " To consult and advise on proper meas- 
ures for advancing the best good of the colonies, and such 
conference to report from time to time to the Colonial 
House of Representatives." 

New Jersey. " To represent the colony in the General 
Congress." 

Pennsylvania. " To form and adopt a plan for the pur- 
poses of obtaining redress of American grievances, ascertain- 
ing American rights upon the most solid and constitutional 
princij)les, and for establishing that union and harmony be- 
tvreen Great Britain and the colonies which is indispensably 
necessary to the veelfare and happiness of both." 

Delaware. " To consult and advise with the deputies 
from the other colonies, to determine upon all such prudent 
and lawful measures as may be judged most expedient for 
the colonies immediately and unitedly to adopt, in order 
to obtain relief for an oppressed people, and the redress of 
our general grievances." 

Maryland. " To attend a general congress, to effect one 
general plan of conduct operating on the commercial con- 
nection of the colonies with the mother country, for the 
relief of Boston, and the preservation of American liberty.'' 

Virginia. " To consider of the most proper and effectual 
manner of so operating on the commercial connection of the 
colonies with the mother country, as to procure redress for 
the much injured province of Massachusetts Bay, to secure 
British America from the ravage and ruin of arbitrary 
taxes, and speedily to procure the return of that harmony 
and union, so beneficial to the whole empire, and so ardently 
desired by all British America." 

North Carolina. " To take such measures as they may 
deem prudent to effect the purpose of describing with cer- 
tainty the rights of Americans, repairing the breach made 
in those rights, and for guarding them for the future 
against any such violations done under the sanction of public 
authox'ity." 

Soicth Carolina. " To consider the acts lately passed, 



APPENDIX A. 403 

and bills depending in Parliament with regard to the port 
of Boston, and the colony of Massachusetts Bay ; which 
acts and bills, in the precedent and consequences, afEect the 
whole Continent of America. Also the grievances under 
which America labors, by reason of the several acts of Par- 
liament that impose taxes or duties for raising a revenue, 
and lay unnecessary restraints and burdens on trade ; and 
of the statutes, parliamentary acts, and royal instructions, 
which make an invidious distinction between his Majesty's 
subjects in Great Britain and America, with full power and 
authority to concert, agree to, and prosecute such legal meas- 
ures, as in the opinion of said deputies, so to be assembled, 
shall be most likely to obtain a repeal of the said acts, and 
a redress of those grievances." 

Neither New York nor Georgia was represented in this 
Congress. Delegates from certain counties of New York 
appeared, but none representing the colony, nor elected by 
it as a colony. 

It is also worthy of remark that the Congress of 1774 
had no agents of its own in foreign countries, but employed 
those of the several colonies ; and see the resolutions for 
delivering the Address to the King, October 25, 1774, and 
Letter to the agents, approved the following day. 

That the powers granted to the delegates to the second 
Congress were substantially the same with those granted to 
the delegates to the first will appear from the following ex- 
tracts from their credentials : — 

Neic Hampshire. " To consent and agree to all meas- t 
ures which said Congress shall deem necessary to obtain 
redress of American grievances." Delegates were appointed 
by a convention. 

Massachusetts. " To concert, agree upon, direct* and 
order " (in concert with the delegates of the other colonies) 
" such further measures as to them shall ajDpear to be the 
best calculated for the recovery and establishment of Ameri- 
can rights and liberties, and for restoring harmony between 
Great Britain and the colonies." Delegates were appointed 
by Provincial Congress. 



404 APPENDIX A. 

Connecticut. " To join, consult, and advise with the other 
colonies in British America, on proper measures for ad- 
vancing the best good of the colonies." Delegates were 
appointed by the Colonial House of Representatives. 

Pennsylvania. " To attend the general Congress." Dele- 
gates aj^pointed by Provincial Assembly. 

New Jersey. " To attend the Continental Congress, and 
to report their proceedings at the next session of the Gen- 
eral Assembly." Delegates were appointed by the Colonial 
Assembly. 

Delaivare. " To concert and agree upon such further 
measures, as shall appear to them best calculated for the 
accommodation of the unhappy differences between Great 
Britain and the colonies on a constitutional foundation, 
which the House most ardently wish for, and that they re- 
port their proceedings to the next session of General As- 
sembly." Delegates were appointed by the Assembly. 

Maryland. " To consent and agree to all measures, 
which said Congress shall deem necessary and effectual to 
obtain a redress of American grievances ; and this province 
bind themselves to execute to the utmost of their power, all 
resolutions which the said Congress may adopt." Delegates 
were appointed by convention, and subsequently approved 
by the General Assembly. 

Virginia. " To represent the colony in general Congress, 
to be held," etc. Delegates were apjiointed by conven- 
tion. 

North Carolina. " Such powers as may make any acts 
done by them, or any of them, or consent given in behalf 
of this province, obligatory in honor upon every inhabit- 
ant thei'eof." Delegates were appointed by convention and 
approved in General Assembly. 

South Carolina. " To concert, agree to, and effectually 
prosecute such measures as in the opinion of the said depu- 
ties, and the deputies to be assembled, shall be most likely 
to obtain a redress of American grievances." Delegates 
were appointed by Provincial Congress. 



APPENDIX A. 405 

The credentials of the delegates from Rhode Island are 
not to be found in the copy of the Journals of Congress 
from which the foregoing are taken. 

New York was not represented as a colony in the Con- 
gress of 1775 ; Georgia was not represented until Septem- 
ber, 1775. Georgia's delegates were authorized " to do, 
transact, join, and concur with the several delegates from 
the other colonies and provinces upon the continent, on all 
such matters and things as shall appear eligible and fit, at 
this alarming time, for the preservation and defence of our 
rights and liberties, and for the restoration of harmony, 
upon constitutional principles, between Great Britain and 
America." 

Some of the colonies appointed their delegates only for 
limited times, at the expiration of which they were replaced 
by others, but without any material change in their powers. 
The delegates were, in all things, subject to the orders of 
their respective colonies.^ 

It is perfectly clear from these extracts, 1, That each 
colony acted in its own individual capacity, without refer- 
ence to any other, and that the colonies made common cause, 
only because the principles at stake affected all alike, and 
the objects to be attained were the same. 2. That each 
colony appointed its own delegates, giving them precisely 
such power and authority as suited its own views. 3. That 
no colony gave any power or authority except for advise- 
ment only. 4. That the purposes set forth were, not to 
establish a new government, but to preserve the old, by 
effecting harmony with Great Britain on constitutional 
principles. 5. That the Continental Congress was organ- 
ized by the colonies as such, and generally through their 
ordinary legislatures, and always with a careful regard to 
their separate and independent rights and powers.^ 

1 Extracted from notes to Upshur's The Federal Government, ed. 
1808, pp. 47, 48, 49, 53, 54, 55. 

2 Adapted from Upshur, p. 49 n. 



406 APPENDIX B. 

APPENDIX B. 

EXTRACTS FKOM THE KENTUCKY AND VIRGINIA RESOLU- 
TIONS OF 1798 AND 1799. 

KENTUCKY RESOLUTIONS. 

1. Resolved, That the several states composing the 
United States of America are united on the principle of 
unlimited submission to their General Government ; but 
that, by a compact under the style and title of a Constitu- 
tion for the United States, and of Amendments thereto, 
they constituted a General Government for special purposes, 
— delegated to that Government certain definite powers, 
reserving, each state to itself, the residuary mass of right 
to their own self-government ; and that whensoever the 
General Government assumes undelegated powers, its acts 
are unauthoritative, void, and of no force : that to this com- 
pact each state acceded as a state, and is an integral party, 
its co-states forming, as to itself, the other party : that the 
Government created by this compact was not made the ex- 
clusive or final judge of the extent of the powers delegated 
to itself ; since that would have made its discretion, and not 
the Constitution, the measure of its powers ; but that, as in 
all other cases of compact among powers having no common 
judge, each party has an equal right to judge for itself, as 
well of infractions as of the mode and measure of redress. 

7. Resolved, That the construction applied by the Gen- 
eral Government (as is evidenced by sundry of their pro- 
ceedings) to those parts of the Constitution of the United 
States which delegate to Congress a power " to lay and col- 
lect taxes, duties, imports, and excises, to pay the debts and 
provide for the common defence and general welfare of the 
United States," and " to make all laws which shall be neces- 
sary and proper for carrying into execution the powers 
vested by the Constitution in the Government of the United 



APPENDIX B. 407 

States, or in any department or ofl&cer thei'eof," goes to the 
destruction of all limits prescribed to their power by the 
Constitution : that words meant by the instrument to be 
subsidiary only to the execution of limited powers ought 
not to be so construed as themselves to give unlimited pow- 
ers, nor a part to be so taken as to destroy the whole residue 
of that instrument : that the proceedings of the General 
Government under color of these articles will be a fit and 
necessary subject of revisal and correction, at a time of 
greater tranquillity, wliile those specified in the preceding 
resolutions call for immediate redress. 

8. Resolved, That a Committee of conference and corre- 
spondence be appointed, who shall have in charge to com- 
municate the preceding resolutions to the Legislatures of 
the several states ; to assure them that this commonwealth 
continues in the same esteem of their friendship and union 
which it has manifested from that moment at which a com- 
mon danger first suggested a common union : that it con- 
siders union for specified national purposes, and particularly 
to those specified in their late federal compact, to be 
friendly to the peace, happiness, and prosperity of all the 
states : that faithful to that compact, according to the plain 
intent and meaning in which it was understood and acceded 
to by the several parties, it is sincerely anxious for its pres- 
ervation : that it does also believe, that to take from the 
states all the powers of self-government and transfer them 
to a general and consolidated government, without regard 
to the special delegations and reservations solemnly agreed 
to in that compact, is not for the peace, happiness, or pros- 
perity of these states ; and that therefore this common- 
wealth is determined, as it doubts not its co-states are, to 
submit to undelegated, and consequently unlimited powers 
in no man, or body of men on earth : that in cases of an 
abuse of the delegated powers, the members of the General 
Government, being chosen by the people, a change by the 
people would be the constitutional remedy ; but where pow- 
ers are assumed which have not been delegated, a nullifica- 



408 APPENDIX B. 

tion of the act is the rightful remedy : that every State has a 
natural right in cases not within the compact (casus non foe- 
deris), to nullify of their own authority all assumptions of 
power by others within their limits : that without this right, 
they would be under the dominion, absolute and unlimited, 
of whosoever might exercise this right of judgment for 
them : that nevertheless, this commonwealth, from motives 
of regard and respect for its co-states, has wished to com- 
municate with them on the subject : that with them alone 
it is proper to communicate, they alone being parties to the 
compact, and solely authorized to judge in the last resort of 
the powers exercised under it, Congress being not a party, 
but merely the creature of the compact, and subject as to 
its assumptions of power to the final judgment of those by 
whom, and for whose use, itself and its powers were all 
created and modified : . . . That this Commonwealth does 
therefore call on its co-states for an exj^ression of their sen- 
timents on the acts concerning aliens, and for the punish- 
ment of certain crimes hereinbefore specified, plainly declar- 
ing whether these acts are or are not authorized by the 
federal compact. And it doubts not that their sense will be 
so announced as to prove their attachment unaltered to 
limited government, whether general or particular. And 
that the rights and liberties of their co-states will be ex- 
posed to no dangers by remaining embarked in a common 
bottom with their own. That they will concur with this 
commonwealth in considering the said acts as so paljjably 
against the Constitution as to amount to an undisguised dec- 
laration that that compact is not meant to be the measure 
of the powers of the General Government, but that it will 
proceed in the exercise over these states of all powers 
whatsoever : that they will view this as seizing the rights of 
the states, and consolidating them in the hands of the Gen- 
eral Government, with a power assumed to bind the states 
(not merely as the cases made federal (casus foederis), 
but in all cases whatsoever, by laws made, not with their 
consent, but by others against their consent) : that this would 



APPENDIX B. 409 

be to surrender the form of government we have chosen, 
and live under one deriving its powers from its own will, 
and not from our authority : and that the co-states, recur- 
• ring to their natural right in cases not made federal, will 
concur in declaring these acts void, and of no force, and 
will each take measures of its own for providing that nei- 
ther these acts, nor any others of the General Government 
not plainly and intentionally authorized by the Constitution, 
shall be exercised within their respective territories. 

9. Resolved, That the said committee be authorized to 
communicate by writing or personal conferences, at any 
time or places whatever, with any person or persons who 
may be appointed by any one or more co-states to corre- 
spond or confer with them, and that they lay their proceed- 
ings before the next session of Assembly. 

VIRGINIA RESOLUTIONS. 

In the Virginia House of Delegates, Friday, December 
21, 1798. 

Resolved, That the General Assembly of Virginia doth 
unequivocally express a firm resolution to maintain and de- 
fend the Constitution of the United States, and the consti- 
tution of this state, against every aggression either foreign 
or domestic ; and that they will support the government of 
the United States in all measures warranted by the former. 

That this Assembly most solemnly declares a warm at- 
tachment to the Union of the states, to maintain which it 
pledges its powers ; and, that for this end, it is their duty to 
watch over and oppose every infraction of those principles 
which constitute the only basis of that Union, because a 
faithful observance of them can alone secure its existence 
and the public happiness. 

That this Assembly doth explicitly and peremptorily de- 
clare, that it views the powers of the Federal Government, 
as resulting from the compact to which the states are par- 
ties, as limited by the plain sense and intention of the instru- 



410 APPENDIX B. 

ment constituting that compact, as no further valid than 
they are authorized by the grants enumerated in that com- 
pact ; and that, in case of a deliberate, palpable, and dan- 
gerous exercise of other powers, not granted by the said 
compact, the states, who are parties thereto, have the right, 
and are in duty bound, to interpose, for arresting the prog- 
ress of the evil, and for maintaining, within their respective 
limits, the authorities, rights, and liberties appertaining to 
them. 

That the General Assembly doth also express its deep 
regret that a spirit has, in sundry instances, been mani-~ 
fested by the Federal Government, to enlarge its powers 
by forced constructions of the constitutional charter which 
defines them ; and that indications have appeared of a de- 
sign to expound certain general phrases (which, having been 
copied from the very limited grant of powers in the former 
Articles of Confederation, were the less liable to be miscon- 
strued) so as to destroy the meaning and effect of the particu- 
lar enumeration which necessarily explains and limits the 
general phrases, and so as to consolidate the states, by de- 
grees, into one Sovereignty, the obvious tendency and inev- 
itable result of which would be, to transform the present re- 
publican system of the United States into an absolute, or, at 
best, a mixed monarchy. . . . 

That the good people of this commonwealth, having ever 
felt, and continuing to feel, the most sincere affection for 
their brethren of the other states ; the truest anxiety for 
establishing and perpetuating the union of all ; and the most 
scrupulous fidelity to that Constitution, which is the pledge 
of mutual friendship, and the instrument of mutual happi- 
ness ; the General Assembly doth solemnly appeal to the like 
dispositions in the other states, in confidence that they will 
concur with this commonwealth in declaring, as it does 
hereby declare, that the acts aforesaid are unconstitutional; 
and that the necessary and projier measures will be taken 
by each for coojjeratlng with this state, in maintaining un- 
impaired the authorities, rights, and liberties reserved to 
the states respectively, or to the people. 



APPENDIX C. 411 

That the governor be desired to transmit a copy of the 
foregoing resolutions to the executive authority of each of 
the other states, with a request, that the same may be com- 
municated to the legislature thereof ; and that a copy be 
furnished to each of the senators and representatives repre- 
senting this state in the Congress of the United States. 



APPENDIX C. 

PROCLAMATION. 

Whereas, At the late session, Congress passed a bill to 
guarantee to certain states whose governments have been 
usurjDed or overthrown a republican form of government, a 
copy of which is hereunto annexed ; 

And whereas. The said bill was presented to the Presi- 
dent of the United States for his approval less than one 
hour before the sine die adjournment of said session, and 
was not signed by him ; 

A7id whereas, The said bill contains, among other things, 
a plan for restoring the states in rebellion to their proper 
practical relation in the Union, which plan expressed the 
sense of Congress upon that subject, and which j)lan it is 
now thought fit to lay before the people for their consid- 
eration ; 

Now, therefore, I, Abraham Lincoln, President of the 
United States, do proclaim, declare, and make known that 
while I am — as I was in December last, when by procla- 
mation I propounded a plan for restoration — unprepared by 
a formal approval of this bill to be inflexibly committed to 
any single plan of restoration ; and while I am also unpre- 
pared to declare that the free-state constitutions and gov- 
ernments already adopted and installed in Arkansas and 
Louisiana shall be set aside and held for naught, thereby 
repelling and discouraging the loyal citizens who have set 
up the same as to further effort, or to declare a constitu- 
tional competency in Congress to abolish slavery in the 



412 APPENDIX C. 

states, but am at the same time sincerely hoping and ex- 
pecting that a constitutional amendment abolishing slavery 
throughout the nation may be adopted ; 

Nevertheless, I am fully satisfied with the system for res- 
toration contained in the bill, as one very jiroper for the 
loyal people of any state choosing to adopt it ; and that I 
am, and at all times shall be, prepared to give the Execu- 
tive aid and assistance to any such people, so soon as mili- 
tary resistance to the United States shall have been sup- 
pressed in any such state, and the people thereof shall have 
sufficiently returned to their obedience to the Constitution 
and the lavps of the United States — in which cases mili- 
tary governors will be appointed, with directions to proceed 
according to the bill. 

In testimony whereof, I have hereunto set my hand, and 
caused the seal of the United States to be affixed. 

Done at the City of Washington, this 8th day of July, in 
the year of our Lord one thousand eight hundred and sixty- 
four, and of the independence of the United States the 
eighty-ninth. 

(l. s.) Abraham Lincoln. 

protest of senator wade and h. winter davis, m. c. 
To the supporters of the Government : 

We have read without surprise, but not without indigna- 
tion, the proclamation of the President of the 8th of July, 
1864. 

The supporters of the Administration are reponsible to 
the country for its conduct ; and it is their right and duty to 
check the encroachments of the Executive on the authority 
of Congress, and to require it to confine itself to its proper 
sphere. 

It is impossible to pass in silence this proclamation with- 
out neglecting that duty ; and, having taken as much re- 
sponsibility as any others in supporting the Administration, 
we are not disposed to fail in the other duty of asserting the 
rights of Congress. 



APPENDIX C. 413 

The President did not sign the bill " to guarantee to cer- 
tain states whose governments have been usurped, a republi- 
can form of government " — passed by the supporters of his 
Administration in both Houses of Congress after mature 
deliberation. 

The bill did not therefore become a law ; and it is, there- 
fore, nothing. 

The proclamation is neither an approval nor a veto of the 
bill ; it is, therefore, a document unknown to the Laws and 
Constitution of the United States. 

Sp far as it contains an apology for not signing the bill, 
it is a political manifesto against the friends of the Govern- 
ment. 

So far as it proposes to execute the bill which is not a law, 
it is a grave Executive usurpation. 

It is fitting that the facts necessary to enable the friends 
of the Administration to appreciate the apology and the 
usurpation be spread before them. 

The proclamation says : — 

" And whereas the said bill was presented to the Presi- 
dent of the United States for his approval less than one hour 
before the sme die adjournment of said session, and was 
not signed by him " — 

If that be accurate, still this bill was presented with other 
bills which were signed. 

Within that hour the time for the sine die adjournment 
was three times postponed by the votes of both Houses ; and 
the least intimation of a desire for more time by the Presi- 
dent to consider this bill would have secured a further post- 
ponement. 

Yet the committee sent to ascertain if the President had 
any further communication for the House of Representa- 
tives reported that he had none ; and the friends of the bill, 
who had anxiously waited on him to ascertain its fate, had 
already been informed that the President had resolved not 
to sign it. 

The time of presentation, therefore, had nothing to do 
with his failure to approve it. 



414 APPENDIX C. 

The bill had been discussed and considered for more than 
a month in the House of Representatives, which it passed 
on the 4th of May. It was reported to the Senate on the 
27th of May, without material amendment, and passed the 
Senate absolutely as it came from the House on the 2d of 
July. 

Ignorance of its contents is out of the question. 

Indeed, at his request, a draft of a bill substantially the 
same in material points, and identical in the points objected 
to by the proclamation, had been laid before him for his 
consideration in the winter of 1862-1863. 

There is, therefore, no reason to suppose the provisions of 
the bill took the President by surprise. 

On the contrary, we have reason to believe them to have 
been so well known that this method of preventing the bill 
from becoming a law without the constitutional resporisibil- 
ity of a veto had been resolved on long before the bill 
passed the Senate. 

We are informed by a gentleman entitled to entire con- 
fidence, that before the 22d of June, in New Orleans, it was 
stated by a member of General Banks' staff, in the presence 
of other gentlemen in official position, that Senator Doo- 
little had written a letter to the department that the House 
Reconstruction Bill would be staved off in the Senate to a 
period too late in the session to require the President to veto 
it in order to defeat it, and that Mr. Lincoln would retain 
the bill, if necessary, and thereby defeat it. 

The experience of Senator Wade, in his various efforts 
to get the bill considered in the Senate, was quite in ac- 
cordance with that plan ; and the fate of the bill was ac- 
curately predicted by letters received from New Orleans 
before it had passed the Senate. 

Had the proclamation stopped there, it would have been 
only one other defeat of the will of the people by the Ex- 
ecutive perversion of the Constitution. 

But it goes further. The President says : — 

" And whereas the said bill contains, among other things. 



APPENDIX C. 415 

a plan for restoring the States in rebellion to their proper 
practical relation in the Union, which plan expresses the 
sense of Congress upon that subject, and which plan it is 
now thought fit to lay before the people for their considera- 
tion" — 

By what authority of the Constitution ? In what forms ? 
The result to be declared by whom ? With what effect 
when ascertained ? 

Is it to be a law by the approval of the people, without 
the approval of Congress, at the will of the President ? 

Will the President, on his opinion of the popular approval, 
execute it as a law ? 

Or is this merely a device to avoid the serious responsi- 
bility of defeating a law on which so many loyal hearts re- 
posed for security ? 

But the reasons now assigned for not approving the bill 
are full of ominous significance. 

The President proceeds : — 

" Now, tlierefoi'e, I, Abraham Lincoln, President of the 
United States, do proclaim, declare, and make known that, 
while I am (as I was in December last, when by proclama- 
tion I propounded a plan for restoration) unprepared by a 
formal approval of this bill to be inflexibly committed to 
any single plan of restoration." 

That is to say, the President is resolved that people shall 
not by law take any securities from the rebel states against 
a renewal of the rebellion, before restoring their power to 
govern us. 

His wisdom and prudence are to be our sufficient guaran- 
tees ! He further says : — 

"And while I am also unprepared to declare that the 
free-state constitutions and governments already adopted 
and installed in Arkansas and Louisiana shall be set aside 
and held for naught, thereby repelling and discouraging 
the loyal citizens who have set up the same as to further 
effort " — 

That is to say, the President persists in recognizing those 



416 APPENDIX C. 

shadows of governments in Arkansas and Louisiana which 
Congress formally declared should not be recognized — 
whose representatives and senators were repelled by formal 
votes of both Houses of Congress — which it was declared 
formally should have no electoral vote for President and 
Vice-President. 

They are mere creatures of his will. They are mere 
oligarchies, imposed on the people by military orders under 
the form of election, at which generals, provost marshals, 
soldiers, and camp-followers were the chief actors, assisted 
by a handful of resident citizens, and urged on to premature 
action by private letters from the President. 

In neither Louisiana nor Arkansas, before Banks' defeat, 
did the United States control half the territory or half the 
population. In Louisiana, General Banks' proclamation 
candidly declared : " The fundamental law of the state is 
martial law." 

On that foundation of freedom he erected what the Presi- 
dent calls " the free constitution and government of Lou- 
isiana." 

But of this state, whose fundamental law was martial 
law, only sixteen parishes out of forty-eight parishes were 
held by the United States ; and in five of the sixteen we 
held only our camps. 

The eleven parishes we substantially held had 233,185 
inhabitants ; the residue of the State not held by us, 
575,617. 

At the farce called an election, the officers of General 
Bank^ returned that 11,346 ballots were cast ; but whether 
any or by whom, the people of the United States have no 
legal assurance ; but it is probable that 4000 were cast by 
soldiers or employes of the United States, military or mu- 
nicipal, but none according to any law, state or national, 
and 7000 ballots represent the state of Louisiana. 

Such is the free constitution and government of Louisiana ; 
and like it is that of Arkansas. Nothing but the failure 
of a military expedition deprived us of a like one in the 



APPENDIX C. 417 

swamps of Florida ; and before the Presidential election, 
like ones may be organized in every rebel state where the 
United States have a camp. 

The President, by preventing this bill from becoming a 
law, holds the electoral votes of the rebel states at the dic- 
tation of his personal ambition. 

If those votes turn the balance in his favor, is it to be 
supposed that his competitor, defeated by such means, will 
acquiesce ? 

If the rebel majority assert their supremacy in those 
states, and send votes which elect an enemy of the Govern- 
ment, will we not repel his claims ? 

And is not that civil war for the Presidency inaugurated 
by the votes of rebel states ? 

Seriously impressed with these dangers, Congress, " the 
proper constitutional authority," formally declared that 
there are no state governments in the rebel states, and 
provided for their erection at a proper time ; and both the 
Senate and the House of Representatives rejected the sen- 
ators and representatives chosen under the authority of 
what the President calls the free constitution and govern- 
ment of Arkansas. 

The President's proclamation " holds for naught " this 
judgment, and discards the authority of the Supreme Court, 
and strides headlong toward the anarchy his proclamation 
of the 8th of December inaugurated. 

If electors for Pi'esident be allowed to be chosen in 
either of those states, a sinister light will be cast on the 
motives which induced the President to " hold for naught " 
the will of Congress rather than his government in Louisi- 
ana and Arkansas. 

That judgment of Congress which the President defies 
was the exercise of an authority exclusively vested in Con- 
gress by the Constitution, to determine what is the estab- 
lished government in a state, and in its own nature and by 
the highest judicial authority binding on all other depart- 
ments of the government. 



418 APPENDIX C. 

The Supreme Court has formally declared that, under 
the 4th section of the IVth article of the Constitution, 
requiring the United States to guarantee to every state a 
republican form of government, *' it rests vi^ith Congress to 
decide what government is the established one in a state ; " 
and " when senators and representatives of a state are ad- 
mitted into the councils of the Union, the authority of the 
Government under which they are ajjpointed, as well as its 
republican character, is recognized by the proper constitu- 
tional authority, and its decision is binding on every other 
department of the Government, and could not be questioned 
in a judicial tribunal. It is true that the contest in this 
case did not last long enough to bring the matter to this 
issue ; and as no senators or representatives were elected 
under the authority of the Government of which Mr. Dorr 
was the head. Congress was not called upon to decide the 
controversy. Yet the right to decide is placed there." 

Even the President's proclamation of the 8th of December 
formally declares that " w^iether members sent to Congress 
from any state shall be admitted to seats constitutionally 
rests exclusively with the respective Houses, and not to any 
extent with the Executive." 

And that is not the less true because wholly inconsistent 
with the President's assumption in that proclamation of a 
right to institute and recognize state governments in the 
rebel states, nor because the President is unable to perceive 
that his recognition is a nullity if it be not conclusive on 
Congress. 

Under the Constitution, the right to senatoi's and repre- 
sentatives is inseparable from a state government. 

If there be a state government, the right is absolute. 

If there be no state government, there can be no senators 
or representatives chosen. 

The two Houses of Congress are expressly declared to be 
the sole judges of their own members. 

When, therefore, senators and representatives are ad- 
mitted, the state government under whose authority they 



APPENDIX C. 419 

were chosen is conclusively established ; when they are re- 
jected, its existence is as conclusively rejected and denied ; 
and to this judgment the President is bound to submit. 

Tiie President i)roceeds to express his unwillingness " to 
declare a constitutional competency in Congress to abolish 
slavery in States " as another reason for not signing the bill. 

But the bill nowhere proposes to abolish slavery in the 
States. 

The bill did provide that all slaves in the rebel states 
should be 7nanmnitted. 

But as the President had already signed three bills 
manumitting several classes of slaves in the states, it is not 
conceived possible that he entertained any scruples touching 
that provision of the bill respecting which he is silent. 

He had already himself assumed a right by proclamation 
to free much the larger number of slaves in the rebel states, 
under the authority given him by Congress to use military 
power to suppress the rebellion ; and it is quite inconceivable 
that the President should think Congress could vest in him 
a discretion it could not exercise itself. 

It is the more unintelligible from the fact that, except 
in respect to a small part of Virginia and Louisiana, the bill 
covered only what the proclamation covered — added a 
congressional title and judicial remedies by law to the dis- 
puted title under the proclamation, and perfected the work 
the President professed to be so anxious to accomplish. 

Slavery as an institution can be abolished only by a 
change of the Constitution of the United States, or of the 
law of the States ; and this is the principle of the bill. 

It required the new constitution of the State to provide 
for that prohibition ; and the President, in the face of his 
own proclamation, does not venture to object to insisting on 
that condition. Nor will the countiy tolerate its abandon- 
ment — yet he defeated the only provision imposing it. 

But when he describes himself, in spite of this great 
blow at emancipation, as " sincerely hoping and expecting 
that a constitutional amendmient abolishing slavery through- 



420 APPENDIX a 

out the nation may be adopted," we curiously inquire on 
what his expectation rests, after the vote of the House of 
Representatives at the recent session, and in the face of the 
poHtical complexion of more than enough of the states to 
prevent the possibility of its adoption within any reasonable 
time ; and why he did not indulge his sincere hopes with so 
large an instalment of the blessing as his approval of the bill 
would have secured ? 

After this assignment of his reasons for preventing the 
bill from becoming a law, the President proceeds to declare 
his purpose to execute it as a law by his plenary dictatorial 
power. 

He says : " Nevertheless, I am fully satisfied with the 
system for restoration contained in the bill, as one very 
projier for the loyal peojjle of any state choosing to adopt 
it ; and that I am, and at all times shall be, prepared to 
give the Executive aid and assistance to any such people, 
as soon as military resistance to the United States shall 
have been suppressed in any such state, and the people 
thereof shall have sufficiently returned to their obedience to 
the Constitution and laws of the United States — in which 
cases military governors will be appointed, with directions 
to proceed according to the bill." 

A more studied outrage on the legislative authority of the 
people has never been perpetrated. 

Congress passed a bill ; the President refused to approve 
it, and then by proclamation puts as much of it in force as 
he sees fit, and proposes to execute those parts by officers 
unknown to the laws of the United States, and not subject 
to the confirmation of the Senate. 

The bill directed the appointment of provisional gov- 
ernors by and with the advice and consent of the Senate. 

The President, after defeating the law, proposes to ap- 
point, without law and without the advice and consent of 
the Senate, military governors for the rebel states ! 

He has already exercised this dictatorial usurpation in 
Louisiana, and defeated the bill to prevent its limitation. 



APPENDIX C. 421 

Henceforth we must regard the following precedent as the 
Presidential law of the rebel states : — 

Executive Mansion, 
Washington, March 15, 1864. 

His Excellency Michael Hahn, Governor of Lotdsiana : 

Until further orders you are hereby invested with the 
powers exercised hitherto by the military governor of Loui- 
siana. Yours, 

Abraham Lincolx. 

This Michael Hahn is no officer of the United States ; 
the President, without law, without the advice and consent 
of the Senate, by a private note not even countersigned by 
the Secretary of State, makes him dictator of Louisiana ! 

The bill provided for the civil administration of the laws 
of the state, — but it should be in a fit temper to govern 
itseK, — repealing all laws recognizing slavery, and making 
all men equal before the law. 

These beneficent provisions the President has annulled. 
People will die, and marry, and transfer property, and buy 
and sell ; and to these acts of civil life courts and officers 
of the law are necessary. Congress legislated for these 
necessary things, and the President deprives them of the 
protection of the law ! 

The President's purpose to instruct his military governors 
" to proceed according to the bill " — a makeshift to calm 
the disappointment its defeat has occasioned — is not merely 
a grave usurpation, but a transparent delusion. 

He cannot " proceed according to the bill " after prevent- 
ing it from becoming a law. 

Whatever is done will be at his will and pleasure, by per- 
sons responsible to no law, and more interested to secure 
the interests and execute the will of the President than of 
the people ; and the will of Congress is to be " held for 
naught," " unless the loyal people of the rebel states choose 
to adopt it." 



422 APPENDIX C. 

If they should graciously prefer the stringent hill to the 
easy proclamation, still the registration will be made under 
no legal sanction ; it will give, no assurance that a majority 
of the people of the states have taken the oath ; if admin- 
istered, it will be without legal authority and void ; no indict- 
ment will lie for false swearing at the election, or for 
admitting bad or rejecting good votes ; it will be the farce 
of Louisiana and Arkansas acted over again, under the 
forms of this bill, but not by authority of law. 

But when we come to the guarantees of future peace 
which Congress meant to enact, the forms as well as the 
substance of the bill must yield to the President's will that 
none should be imposed. 

It was the solemn resolve of Congress to protect the loyal 
men of the nation against three great dangers : (1) the 
return to power of the guilty leaders of the rebellion ; (2) 
the continuance of slavery ; and (3) the burden of the rebel 
debt. 

Congress required assent to those provisions by the con- 
vention of the state ; and, if refused, it was to be dissolved. 

The President " holds for naught " that resolve of Con- 
gress, because he is unwilling " to be inflexibly committed 
to any one plan of restoration," and the people of the 
United States are not to be allowed to protect themselves 
unless their enemies agree to it. 

The order to proceed according to the bill is therefore 
merely at the will of the rebel states ; and they have the 
option to reject it, accept the proclamation of the 8th of 
December, and demand the President's recognition ! 

Mark the contrast ! The bill requires a majority, the 
proclamation is satisfied with one tenth ; the bill requires 
one oath, the proclamation another ; the bill ascertains voters 
by registering, the proclamation by guess ; the bill exacts 
adherence to existing territorial limits, the proclamation 
admits of others ; the bill governs the rebel states by law, 
equalizing all before it, the proclamation commits them to 
the lawless discretion of military governors and provost 



APPENDIX C. 423 

marshals ; the bill forbids electors for President, the procla- 
mation and defeat of the bill threaten us with civil war for 
the admission or exclusion of such votes ; the bill exacted 
exclusion of dangerous enemies from power and the relief 
of the nation from the rebel debt, and the prohibition of 
slavery forever, so that the suppression of the rebellion will 
double our resources to bear or pay the national debt, free 
the masses from the old domination of the rebel leaders, 
and eradicate the cause of the war ; the proclamation se- 
cures neither of these guarantees. 

It is silent respecting the rebel debt and the political 
exclusion of rebel leaders ; leaving slavery exactly where it 
was by law at the outbreak of the rebellion, and adds no 
guarantee even of the freedom of the slaves he undertook 
to manumit. 

It is summed up in an illegal oath, without sanction, and 
therefore void. 

The oath is to support all proclamations of the President, 
during the rebellion, having reference to slaves. 

Any government is to be accejDted at the hands of one 
tenth of the people not contravening that oath. 

Now that oath neither secures the abolition of slavery, 
nor adds any security to the freedom of the slaves the Presi- 
dent declared free. 

It does not secure the abolition of slavery ; for the procla- 
mation of freedom merely professed to free certain slaves 
while it recognized the institution. 

Every constitution of the rebel states at the outbreak of 
the rebellion may be adopted without the change of a letter : 
for none of them contravene that proclamation ; none of 
them establish slavery. 

It adds no security to the freedom of the slaves ; for their 
title is the proclamation of freedom. 

If it be unconstitutional, an oath to support it is void. 
"Whether constitutional or not, the oath is without authority 
of law, and therefore void. 

If it be valid and observed, it exacts no enactment by 



424 APPENDIX C. 

the state, either in law or constitution, to add a state guar- 
antee to the proclamation title ; and the right o£ a slave to 
freedom is an open question before the state courts on the 
relative authoi*ity of the state law and the proclamation. 

If the oath binds the one tenth who take it, it is not ex- 
acted of the other nine tenths who succeed to the control of 
the state government, so that it is annulled instantly by the 
act of recognition. 

What the state courts would say of the proclamation, 
who can doubt ? 

But the master would not go into court — he would seize 
his slaves. 

What the Supreme Court would say, who can tell ? 

When and how is the question to get there ? 

No habeas corpus lies for him in a United States Court ; 
and the President defeated with this bill the extension of 
that writ to his case. 

Such are the fruits of this rash and fatal act of the Presi- 
dent, — a blow at the friends of his Administration, at the 
rights of humanity, and at the principles of republican 
government. 

The President has greatly presumed on the forbearance 
which the supporters of his Administration have so long 
practised, in view of the arduous conflict in which we are 
engaged, and the reckless ferocity of our political oppo- 
nents. 

But he must understand that our support is of a cause, 
and not of a man ; that the authority of Congress is para- 
mount and must be respected ; that the whole body of the 
Union men of Congress will not submit to be impeached by 
him of rash and unconstitutional legislation ; and if he 
wishes our support, he must confine himself to his Executive 
duties, — to obey and execute, not make the laws, — to sup- 
press by arms armed rebellion, and leave pohtical reorgani- 
zation to Congress. 

If the supporters of the Government fail to insist on this, 
they become responsible for the usurpations which they fail 



APPENDIX C. 425 

to rebuke, and are justly liable to the indignation of the peo- 
ple whose rights and security, committed to their keeping, 
they sacrifice. 

Let them consider the remedy of these usurpations, and, 
having found it, fearlessly execute it. 

B. F. Wade, 
Chairman Senate Committee. 
H. Winter Davis, 
Chairman Committee House of Representatives on 
the rebellious states. 



INDEX. 



Abolitionists, welcome disunion, 231. 

Acts of Navigation and of Trade, 49, 
50. 

Adams, John, 45 n., 50 n., 63 n., 77 n. 

Adams, John Quincy, on admission of Ar- 
kansas, 218, 219; concerning Spain's 
otfer, 221. 

Adams, Samuel, opposed to Washington 
administration, 151. 

Address to people of Great Britain, 69. 

Administration, American sense of, 29, 
30 ; royal, 52 ; colonial, 131-133. 

Alabama, 2, 217, 223. 

Albany Conference, 46 n. 

Alien and Sedition laws, 192, 194. 

Allegiance, 52, 53, 66. 

Amnesty Proclamation, 272, 273, 281, 
303, 333, 345, 346, 353, 386 n. 

Anglican element, predominance of, 40- 
42. 

Anglican Revolution, 23. 

Anti-Federalists (see Democratic Party), 
a misnomer, 146 ; reason for existence 
of, 146. 

Aristotle, on constitution and govern- 
ment, 28, 31, 32 ; his notion of a state, 
32 n. 

Arkansas, 218-220, 228, 302, .303, 30G, 
307, 309, 316 ; reconstruction of, 324, 
325; 347. 

Arnold, Benedict, 94 n. 

Articles of Association, 69. 

Articles of Confederation, 12, 36, 64, 77 
n. ; expressive of segregation and of 
union, 80, 81 ; testify to sentiment of 
union, 82, 108 ; first article of, 83, 84 ; 
league of friendship, 84, 101, 107 ; 
when first submitted, 86, 87 ; expla- 
nation of weakness of, 88-91, 98, 101, 
105; reasons for, 91, 137 ; a grudging 
compact, 92 ; tliey coustitutioiialized 
Congress, 93 ; limitations upon Con- 
gress, 93 n. ; no jurisdiction over in- 
ternal affairs of tlie states, 94 ; war 
half over before adoption of, 95, 137 ; 
Congress was inchoate under, 100, 
139; "the great and radical vice," 
101 ; Hamilton's, Madison's, Kdmund 
Randolph's expositions of defects, 102, 
103 n. ; powers not delegated were 
retained, 84, 110 ; federal principle 
predominant, 117, 118 ; effect of slaves 
upon quotas of contribution, 120; not 
evidence of existence of parties, 137 ; 
ratification of, 189. 



Ashley, James M., 307, 308, 316. 
Assembly, the General (see Legislatures). 
Assimilation of races, 41, 42. 
Attachment to the soil, southern, 14 ; 

colonial, 58. 
Autonomy, 47, 48, 52-54. 

Baltimore, 42 n. 

Bank of the United States, 173. 

Banks, Nathaniel P., 302, 303, 334, 352- 
354. 

Benton, Thomas H., 204. 

Bigelow, John, 45 n., 46 n., 60 n. 

Bill, Exclusion, 24. 

Bill of Rights, 24, 67, 68. 

Black, Jeremiah S., opinion respecting 
coercion, 230. 

Bluntschli, 62 n. 

Board of Lords of Trade and Planta- 
tions, 49. 

Body-politic (see Corporation). 

Bonaparte, Napoleon, author of clause 
in Louisiana treaty, 218. 

Border States, 246-249, 346; Lincoln's 
appeal to, 266, 268. 

Boston, 42. 

Boutwell, George S., 287. 

Breckinridge, John C, 251, 252. 

Brown, B. Gratz, 290. 

Browulow, W. G., governor of Tennes- 
see, 323. 

Brown v. The United States, 263. 

Buchanan, James, line of conduct, 
230. 

Cabinet, 29. 

Calhoun, John C, 204, 212. 

Canada (see New France). 

Carlile, James S., on the guarantee 

clause, 293-296. 
Charleston, 56. 

Charters, 47 n., 139, 155 n., 163 n. 
Chase, Samuel, 77 n. 
Chatham, Lord, 24, 58. 
Chisliolm t'. Georgia, 8 n., 39 n., 52 n., 

54 n., 101 n., 107 n., 109 n., 163 n. 
Church and state, a motive of revolt, 

150. 
Churcli of England, 61. 
City-State, Aristotle's notions confined 

to, 32 n. 
Climate, 12. 

Clinton, George, 77 n., 161. 
Coercion, Peace Convention against, 

229 ; not among constitutional pow- 



428 



INDEX. 



ers, 229 n. ; Madison on, 229 n. ; 
Black on, 230 ; Buchanan's course re- 
specting, 230 ; Lincoln confronted 
with, 230 ; obstacles to, 234-236. 

Collanier, Jacob, 261, 378. 

Colonies and colonists, 12, 13, 15 ; 
characteristics of, 40-42 ; causes of 
segregation, 43, 44 ; separateness of, 
43-80 ; made no effort towards union, 
45 ; nothing political between, 45-47, 
52, 53, 55 ; were dominions, 47-52 ; 
autonomy of, 47, 48 ; political frame 
of, 48 ; claim of British Parliament 
over, 50, 51 ; sliill in art of govern- 
ing, 58, 59, 129, 132; inefficacy of 
colonial system, 59, 60 ; individuality 
of, 61, 62; Bluutschli's points of 
colonial similarity, 62 n. ; creatures 
of growth, 63 ; local self-government, 
64 ; reluctance to part with powers, 
64-66, 83, 00, 92 ; vitality of the local 
governments, 95, 96, 100 ; colonial 
epoch, the generative epoch, 128, 137; 
fondness for political studies, 129 ; 
influence of Locke and Montesquieu, 
study of the law, 130 ; political dis- 
quisitions, 131 ; no general parties, 
133 ; an age of constitutional devel- 
opment, 134. 

Committee of Public Safety, 74. 

Compact, 72, 103 ; refers to the Consti- 
tution, 197, 198, 204 ; change of north- 
ern view respecting, 215. 

Compromise (see Crittenden ; Missouri), 
20, 121, 122, 226, 227. 

Confederation (see Articles of Confeder- 
ation ; New England Confederation), 
9, 83, 94, 95. 

Congress, the United States', 9, 91, 92, 
99, 107, 139 ; parties define themselves 
in, 172 ; 173 n., 263, 264. 

Congress of the Colonies, 47. 

Congresses of 1774 and 1775, 64, 66-76, 
91, 94, 95, 103, 121. 

Connecticut, 33, 47 n. ; retained charter 
for state constitution, 48 n., 139 ; 123. 
109 ; resigns claim to territory, 189 ; 
retains Western Reserve, 190 n. 

Constitution, the British, 23-25, 32. 

Constitution of the United States, 28; 
provides for equality of states, 9, 11 ; 
a compromise, 20 ; vital forces stored 
in, 34 ; " the First Constitution," 81- 
103 ; when submitted to the states, 
88 n. ; not contemplated in call for 
convention, 90, 104-124; leading de- 
fects of, and objections to, 155 n. ; 
construction of, 173-175 ; modes of 
constitutional redress, 199 ; terminol- 
ogy of ratifications of, 207 ; provision 
for resumption of powers in ratifica- 
tions of, 209. 

Constitutional Convention, ignored pur- 
pose for whicli it was called, 90 ; com- 
pleted the Revolution, 116, 117, 211, 
212. 

Constitutionality of laws, courts to de- 
termine, 35. 



Constitutions, Aristotle upon, 28-32 ; 
written and unwritten, 30 ; contain 
form of governnent, 30 ; whence un- 
written constitutions can be deduced, 
30, 31 ; manifest spirit of the state, 
31 ; ethical qualities of, 31 n. ; ap- 
pearance of written constitution in 
Connecticut, 33, 34 ; expressive of a 
people's political nature, 126 ; consti- 
tutional character best expressed at 
inception, 116, 117, 126, 127. 

Constitutions of the several states, adop- 
tion of, 77 n. ; charters retained for 
constitution, 48 n., 139; no vital 
changes resulted from Revolution, 
96. 

Corporation, or body-politic, 47, 48, 54. 

Courts, the, 35. 

Cowan, Edgar, 315. 

Credentials of colonial delegates, 67, 72, 
106, 401-406. 

Crittenden, John J., compromise, 227 ; 
resolution, 245-253. 

Cromwell, Oliver, 24. 

Cushing, Justice, 109 n. 

Dane, Nathan, 191. 

Davis, Garrett, 371. 

Davis, Henry Winter, 244 ; reports Re- 
construction Bill, 275 ; speech on the 
bill, 278-282 ; manifesto, 299-305 ; 
307 ; his last address, 309-314 ; death 
of, 315 ; political character of, 315 ; 
364, 365, 379, 381, 412-425. 

Davis, Jefferson, takes leave of the 
Senate, 2-4 ; criticises President Lin- 
coln, 223 n., 242 ; keeps within his 
constitution, 240. 

Dawes, Henry L., 308, 311, 312, 315. 

Declaration of colonial rights, 68. 

Declaration of Independence, 74, 76- 
79. 

Declaration of Rights, 39 n. ; (Virginia) 
111. 

Delaware, 77 n., 190; ratification of 
Constitution, 207 ; 281. 

Democracy (see Representative Demo- 
cracy), 37, 113, 150. 

Democratic-Republican Party, 145-170 ; 
constituents of, 146-149; two funda- 
mental principles, 149 ; dread of stand- 
ing army, "artificial classes," cinirch 
and state, 150 ; Madison becomes con- 
gressional leader, 151 ; faith in the 
Constitution, 154 ; founded prior to 
return home of Jefferson, 160, 161 n. 

Democratic Party, adopted Virginia 
Resolutions as creed, 205 ; 215. 

Dickinson, John, 69 n. 

Dixon, James, 256. 

Dominion, 47, 48, 51-53. 

Doolittle, James R., 249,253,371,376- 
378, 381, 383-387, 393. 

Durant, Thomas J., 331. 

Education, 15, 10. 

Eliot, Thomas D., 307, 308, 311, 312, 
315. 



INDEX. 



429 



Emancipation, 39, 2G6, 2G7 ; Proclama- 
tion, 2(i7, 2G8 ; Louisiana, 339. 

Equality of representation, 19. 

Equality of statehood, 8, 19-21, 70, 
72. 

Exclusiveness, colonial, 53-Gl, 97. 

Federalist, The, 41 n. 

Federalist Party, constituents of, 140- 

144 ; how they came into power, 151 ; 

mistakes of, 152-155; doctrines of, 

175-179. 
Federal Union, The (see Union, The 

Federal). 
Federation and Federalism, 8, 9, 36, 

117; 196. 
Fessenden, W. P., 250, 261. 
Florida, 1, 5, 220. 
Fowler, 32 n. 
Franklin, Benjamin, 45 n., 57 n., GO n., 

77 n. 
Free Inquiry, 33, 34, 38. 
Fugitive Slave clause in Ordinance of 

1787, 191. 

Glenelg, Lord, 51 n. 

George II., G3. 

Georgia, 4 (see Chisholm v.), 77 n., 190 ; 
ratification of Constitution, 207. 

Government, 28-30, 34, 35, 87-95 ; a rep- 
resentative Democracy, 128. 

Governor, the, 28, 38, 47, 48. 

Grant, Ulysses S., General, order re- 
specting Tennessee courts, 317. 

Grants from the crown, 52. 

Grenville, George, 98. 

Gulf of Mexico, 40. 

Habeas Corpus Act, 24. 

Hahn, Michael, 337-339, 380. 

Hale, John P., 251, 259-2G2 ; 315, 342. 

Hamilton, Alexander, 74 n., 77 n., 100 
101, 111 n. : his supporters, 140-144 
his constructive measures, 152, 153 , 
distrust of the people, 153, 184 ; Secre- 
tary of the Treasury, 157 ; writes much 
of the Federalist, and advocates adop- 
tion of the Constitution, 161, 162: 
notions of government, 163, 165; 
views of the Constitution, 171, 172 ; his 
financial measures, 172, 173 ; his strong 
personality, ISO; liow Jeffersonians 
viewed his financial policy, 181-183 ; 
Hamiltonian policy, 184-188; effects 
of his financial policy, 210. 

Harris, Isham G., 318. 

Harrison, Benjamin, 77 n. 

Hellenic notion of a state, 31 n., 32 n. 

Henderson, John B., 354-359, 3G4, 366, 
369, 371. ' 

Hendricks, Thomas A., 371, 372. 

Hickman, John, 2G8. 

Holman, W. S., 253. 

Homogeneity, 40-43. 

Hooper, William, 77 n. 

Hopkinson, Francis, 77 n. 

House of Representatives, permanent 
committees, 180 n. 



Howard, Jacob M., 264, 365, 366. 
Humphries, Daniel, 101 n. 
Hunter, General, 266. 
Hurlbut, General, 339, 340. 
Hutchinson, Thomas, 59 n. 

Illinois, 7. 

Indiana, 7. 

Invention, 16. 

Iredell, Justice, 8 n., 109 n., 163 n. 

Jackson, Andrew, 221. 

Jay, John, 39 n., 41 n., 69 n., 107 n. 

Jefferson, Thomas, 16, 77 n., 105, 106 n. ; 
becomes Secretary of State, 157 ; sym- 
pathy with French revolution, 159 ; 
favorable disposition towards the Con. 
stitution, 160 ; notions of government, 
163-165 ; reported plan for govern- 
ment of western territory, 190 ; au- 
thor of Kentucky resolutions, 1798, 
193, 196, 198 ; letter to Madison, 203 ; 
221. 

Jolinson, Andrew, offers Crittenden 
resolution in the Senate, 246, 249 ; ap- 
pointed military governor of Tennes- 
see, 318 ; purposes of his appoint- 
ment, 319 ; views of relations of citi- 
zens to federal government, 320 n. ; 
regarded southern states to be in the 
Union, 321 ; 382, 387 ; Sumner's opin- 
ion of, 387. 

Johnson, Reverdy, 366-371, 378. 

Jowett, 32. 

Kelley, William D., 308. 

Kentucky, 248, 281. 

Kentucky and Virginia Resolutions, 

192-205 ; interposition a duty, 214 : 

229,406-411. 
King, Rufus, presents prohibition of 

slavery in Northwest Territory, 191 ; 

his statement regarding admission of 

Missouri, 216, 218, 222. 

Labor, 16, 17. 
Laissez-faire, 58, 63. 

League of friendship, 83, 84, 86, 90. 
107. !->.,, 

Le Blond, Frank C, 309. 

Lee, Richard Henry, 111 n. 

Legislation, 29, 31. 

Legislatures, colonial and state, 35, 37, 
64-66, 72, 94, 128, 131, 139, 157. 

Letcher, John, 237. 

Lexington, affair of, 73. 

Lincoln, Abraham, 228; political ante- 
cedents and speeches, 232, 233 ; his 
Inaugural Address, 236, 243, 265, 397 ; 
answer to Virginia Commissioners, 
236, 237 ; position same as Buchan- 
an's, 236 n. ; takes measures for coer- 
cion, 237-239 ; unconstitutionality of 
his acts, 239, 240; the condonation 
acts, 240, 346; Mes.sage, July, 1861, 
240, 241, 243 ; exculpation of uncon- 
stitutional proceedings on ground of 
necessity and popular demand, 242 ; 



430 



INDEX. 



foreshadows reconstruction, 242, 243 ; 
status of a seceded state, 243 ; recom- 
mends compensated emancipation. 
Hunter's order, appeal to Border 
States, 2GG ; Emancipation Proclama- 
tion, 267 ; Message, December, 18G3, 
272 ; Amnesty Proclamation, 272, 273, 
281 ; contest with Congress, 274 ; dis- 
trusted by Congress, 283, 284 ; pock- 
ets tlie Reconstruction Bill, 29G, 297 ; 
his proclamation, 298, 299 ; 301, 302 ; 
304, 411, 412 ; reelection, 306 ; 309- 
311 ; early views of reconstruction, 
320, 325 ; dealings witli Arkansas, 
takes reconstruction of Louisiana into 
his own hands, 333 ; confers military 
powers on Hahn, 338 ; message on 
joint Resolution, February 4, 1865, 
387-389. 

Local self-government, 80, 82, 95 ; Jef- 
ferson, exponent of, 165. 

Localism, 36, 80, 94, 95, 112. 

London, 55, 56. 

Long Parliament, 24, 91. 

Louis, The United States v., 328-330. 

Louisiana, 217 n. ; 302, 303, 306, 307, 
309, 313, 316 ; movements towards re- 
organization, 326, 327, 330, 331 ; free 
state men or radicals, 331-333 ; 335- 
339; Banks' reconstruction, 334-340; 
members of Congress, 340, 343 ; con- 
gressional report, 340, 342 ; Wells' 
proclamation, 342 ; character of the 
loyal people, 342-344 ; Senate debate 
on recognition, 349-373 ; Senate de- 
bate on electoral vote, 374-387. 

Louisiana Purchase, 216 n., 217 n. ; re- 
pugnance to, 219 ; 220. 

Lovejoy, Owen, 257. 

Madison, James, 95 u., 103 n., 105, 106 n.. 
Ill n., 116 n. ; leader of new party, 149, 
151, 176 ; influence over Jefferson, 160 ; 
author of Virginia Resolutions, 193 ; 
comments on Jefferson, 202, 203 ; on 
the word " states," 206; on the guar- 
antee clause, 293, 355. 

Maine, admission of, 222-224. 

Maine, Sir Henry S., 58 n. 

Manifesto, the Wade - Davis, 299-305 ; 
412-425. 

Marshall, John, 75 n., 98 n. 

Mary, William and, 25. 

Maryland, 48 n., 77 n., 140, 169; rea- 
sons for ratifying Confederation, 189 ; 
voted against prohibition of slavery, 
190 ; 229, 248, 281. 

Mason. George, 121. 

Massachusetts, 33, 44, 46 n., 47 n., 50, 
77 n., 140; ceded territory, 190 n. ; 
styles the Constitution a compact, 197, 
223. 

May, 51 n. 

Middleton, Arthur, 77 n. 

Migration, 13, 33. 

Mississippi, 2, 40. 

Missouri, 6 ; applies for state govern- 
ment, 216 ; had been slave territory. 



217, 219, 220 ; the Missouri Compro- 

mise, 223-226 ; 229, 248. 
Monroe, James, concerning declination 

of Spain's offer, 221, 225. 
Montesquieu, 58 n. 
Montfort, Simon de, 25. 
Morrill, Lot M., 263, 264. 

Nationalism, 36, 105, 118, 138 ; federal- 
ism shares with, 172; 196; becomes 
aggressive, 205. 

New England, 7, 15, 16, 34, 38, 41, 43, 
45, 140, 214. 

New England Confederation, 36, 45 n., 
77 n., 91. 

New France, 37, 38, 40, 41. 

New Hampshire, 77 n., styles the Con- 
stitution a compact, 197. 

New Jersey, 34, 41, 77, 140, 169, 190, 
281. 

Newman, 31 n., 33 n. 

New Orleans (see Louisiana). 

New York, 7, 38 n., 42, 45, 73, 77 n., 140, 
189, 209. 

North, Lord, 98. 

North Carolina, 17, 44, 77 n., 123 ; vote 
on prohibition of slavery, 190 ; 228 ; 
attempted reconstruction of, 323, 
324. 

Nullification, 3, 201, 202. 

Ohio, 6, 7, 192. 

Ordinance of 1787, 189-192, 220, 224. 

Otis, James, 64. 

Paine, Robert Treat, 77 n. 

Parish, Tlie, 37. 

Parkman, Francis, 60 n. 

Parliament, British, fixedly organized, 
24 ; assertion of authority over colo- 
nies, 50, 51 n., 64, 65, 68. 

Parliaments (see Legislatures), 66. 

Parties, 87; formation of, 125-128 ; source 
of, 125 ; history of, 127 ; agents of op- 
posing ideas, 128 ; no general parties 
during colonial period, 133, 134 ; Whigs 
and Tories, 133 ; generated during rev- 
olutionary period, 134 ; two schools, 
137, 138, 149, 167-170 ; formed in state 
legislatures, 139-157 ; became general 
under federal government, 157, 158 ; 
lines defined in Congress, 172 ; Ham- 
iltonians and Jeffersonians, 175 ; doc- 
trines of, 175-179 ; strict-construction- 
ists, 179 ; affected by character of 
leaders, 181 ; state-rights, antitype of 
nationalism, 205. 

Peabody, Charles A., 325, 326, 328-331, 
376. 

Peace Convention, resolved against co- 
ercion, 229. 

Pendleton, Edmund, on compact, 198. 

Pendleton, George H., on Reconstruc- 
tion Bill, 284-288. 

Penhallow's Case, .365 n. 

Pennsylvania, 41, 75 n., 76, 77 n., 122 n., 
140, 169. 

People, constitutional character^ 30, 31 ; 



INDEX. 



431 



thirteen distinct peoples, 53, 55, 78, 79, 

133, 207 ; character relates to latest 

revolution, 127 ; source of power, 127 ; 

the word " peoples," 20G, 207. 
Petition to the l^iiig, G9. 
Phelps, John S., military governor of 

Arkansas, 324. 
Philadelphia, 13, 42, 55, 56. 
Phillips, Wendell, welcomes disunion, 

231 ; 304. 
Plato, 31 n. 
TToAiTei'a, 28, 32. 
Pomeroy, Samuel C, 371. 
Poor whites, the, 17, 18. 
Powell, Lazarus W., 350-354, 360, 368, 

369, 378, 381, 383-385, 386 n. 
Power, balance of, 8, 19, 20 ; descent 

of, from the throne to the commons, 

24-26 ; gravitation of northward, 18- 

20. 
Povfers, implied or latent, 84, 172-175, 

177. 
President, The, 10, 11, 28, 29. 
Pride's Purge, 25. 
Privy Council, 97. 
Products, 12. 

Protest, Wade-Davia (see Manifesto). 
Providence, 42 n. 

Randolph, Edmund, 101 n., 103 n., 121. 

Reconstruction, Plans of, the Presiden- 
tial, 272, 273, 281 ; the congressional, 
277, 278, 290. 

Reiter, The United States v., J28-330. 

Religion, 15. 

Representation, 9, 10, 37, 118-121. 

Representative Democracy, 26, 33-36, 
112-114, 118, 128. 

Representatives, House of, 4, 9-11, 118. 

Republican form of government, guar- 
antee of, 113, 122-124 ; bill to guaran- 
tee (the Reconstruction Bill), 275-279 ; 
Madison upon, 293 ; Carlile upon, 293- 
296. 

Republican Party, certain elements of, 
231. 

Revolution in America, 26, 27, 37-39; 
period of, 64 ; 95, 96 n., 117 ; genera- 
tion of parties in, 134, 135. 

Revolution in Great Britain, 24-26, 38, 
39, 89, 110, 149. 

Rhode Island, 33, 34, 47 n. ; retained 
charter as state constitution, 48 n., 
139 ; 123, 169. 

Rodney, CiEs.ar, 77 n. 

Ruler, the, elimination of, 89, 90, 168. 

Rusli, Benjamin, 77 n. 

Rutledge, Edward, 77 n. 

Saulsbury, WiUard, 261, 371. 
Schools, Old and New, 85-89, 167-190. 
Secession, 3, 8 ; a constant menace, 

213 ; regarded as a natural remedy, 

214. 
Sectionalism, 12-21 ; 208-214, 231, 232. 
Segregation of colonies, 43, 44. 
Senate, The United States', 1, 7-12, 118; 

permanent committees, 180 u. 



Seward, William Henry, 259. 

Sliepley, George F., military governor 
of Louisiana, 325, 332, 333. 

Sherman, John, 251, 373. 

Slavery and slave-power, 15, 18-20, 37 ; 
abolislied in District of Columbia, 
2()6 n. ; Emancipation Proclamation, 
267, 268. 

Slaves, representation of, 119-221. 

Smith, Melancthon, 161. 

Social forms, 12 et seq. 

South Carolina, 1, 7, 44, 77 n., 120; 
cedes territory, 190 n. ; voted against 
prohibition of slavery, 190, 228. 

Sovereignty, 27, 35, 39 n., 67, 70-72, 75- 
79, 82. 

Sovereignty, state, 3, 27, 39 n., 79 ; " re- 
siduary sovereignty," 155. 

Sovereignty of the United States, 8, 
39 n., 82, 105, 108, 109 n. 

St. Lawrence, the river, 40. 

Stamp Act, 45 u., 46, 52, 57, 64. 

Stanley, Edward, 323. 

State and church, 34, 150. 

State, the, 3, 27. 

States, the, 3, 5, 6, 8, 9, 19, 27, 35, 76, 
82-84, 98, 112, 113 n. ; application of 
the term, 205, 206 ; in reference to 
" peoples," 206, 207 ; effect of seces- 
sion upon status, 254, 256, 258, 285- 
288, 290, 291 ; what is a state ? 365, 
374-387. 

Statutes (see Legislation). 

Stevens, Thaddeus, ignores the Consti- 
tution, 254, 256, 263, 265, 270; on 
status of seceded states, 258 ; assails 
the President, 268, 269, 274 ; the rad- 
ical ultimatum, 271 ; his vaunt, 258, 
272, 276 ; 275 ; view of representation 
requisite for an amendment, 280, 281 ; 
alliance with conservatives, 314, 315 ; 
votes to table Reconstruction Bill, 
314 n. ; 330, 343, 368 n., 386, 397. 

Story, Justice, 48 n., 116 n. 

Sturgess v. Crowninshield, 75 n. 

Suffrage, ratio of, 119-121. 

Sumner, Charles, 254, 265, 349, 350, 
3.55, 356, 361, 363, 364, 366, 369-373, 
387. 

Tallmadge Amendment, 216, 222. 

Ten Eyck, John, 374-387. 

Tennessee, 44, 228 ; reconstruction of, 

317-323 ; convention and elections of 

1865, Bro\vnlow elected governor, 323 ; 

ratified thirteenth amendment, 323. 
Texas, 221. 
Topography, 12. 
Townshend, Charles, 98. 
Township, The, 37. 
Treaties, France, 79 ; Great Britain, 79 ; 

Netherlands, 79 ; Spain, 218, 219, 225 ; 

Sweden, 79 ; (general) 107. 
Trumbull, Lyman, 250, 252, 253, 269, 

315, 349, 350, 371, 374, 375, 378. 

Union, 21, 35, 45-47, 65, 66, 70, 71, 82- 
84, 118, 158. 



432 



INDEX. 



Union, The Federal, 1-3, 6-8, 20, 21, 27, 
35, 36, 82, 97, 114, 115, 118, 123, 
227. 

United States, The, 1, 4, 8, 82 ; govern- 
ment of, reijresentative-democratic, 
128 ; need of central power, 138. 

Usurper, Powell's definition of, 385. 

Virginia, 16 n., 17, 38, 39 n., 77 n., 140, 
offer to cede Northwest Territory, 
189 ; Congress accepted cession, 190 
n. ; voted against prohibition of slav- 
ery, 190 ; provision for resumption of 
powers, 209, 228. 

Wade, Benjamin F., 244, 290-292, 299, 

371, 379-383, 412-425. 
Wadsworth, William H,, 271, 272. 



Washington, city of, 7. 

Washington, George, 101 n., 115 n. ; 

first cabinet of, 157. 
Webster, Daniel, 5, 196, 198, 204. 
Wells, Governor, 342. 
Western Virginia, 248, 268, 269. 
Whigs, the, 85, 215. 
White and black races, incompatibility 

of, 19. ' 

Willey, Waitman T., expresses fears of 

the Border States, 249. 
William and Mary, 25. 
Wilson, Henry, 247 n., 256, 261, 276 n. 
Wilson, James, 122. 
Wood, Fernando, 308. 
Wythe, George, 77 n. 

Yulee, Senator, 2. 



